Ifc.'v Jonathan M. Landers James A. Martin Stephen C. Yeazell Federal Rules Of Civil Procedure Mth Selected Statutes And Cases 1986 Little, Brown and Company Digitized by the Internet Archive in 2010 http://www.archive.org/details/landersmartinfedOOunit FEDERAL RULES OF CIVIL PROCEDURE with Selected Statutes and Cases — 1986 EDITORIAL ADVISORY BOARD Little, Brown and Company Law Book Division Francis A. Allen Edson R. Sunderland Professor of Law Universit)' of Michigan Thomas Ehrlich Provost and Professor of Law University of Pennsylvania Richard A. Epstein James Parker Hall Professor of Law- University of Chicago E. Allan Fams worth Alfred McCormack Professor of Law Columbia Universitv' Geoffiey C. Hazard, Jr. Nathan Baker Professor of Law Yale University Bernard Wolfman Fessendcn Professor of Lav\' Har\ard Universit\ EMERITUS A. James Casner Austin Wakeman Scott Professor of Law, Emeritus Harvard University Clark Byse Byrne Professor of Administrative Law. Emeritus Harvard Universitv Landers and Martin FEDERAL RULES OF CIVIL PROCEDURE with Selected Statutes and Cases — 1986 Stephen C. Yeazell Professor of Law University of California, Los Angeles Little, Bro«Ti and Company Boston Toronto Copyright © 1986 by )onatlian M Landers, the estate of James A. Martin, and Stephen C. Yeazell All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review. LIBRARY OF CONGRESS CATALOG CARD NO 84-80926 ISBN 0-316-51359-8 Published simultaneously in Canada bv Little, Brown & Company (Canada) Limited Printed 111 the United States of America CONTENTS Table of Cases Preface PART I. Rules and Statutes 1 Federal Rules of Civil Procedure for the United States District Courts 3 Appendix of Forms 149 Supplemental Rules for Certain Admiralty and Maritime Claims 177 Selected Federal Rules of Appellate Procedure 193 Selected Provisions from the Constitution of the United States 225 Selected Provisions from United States Code, Title 28, Judiciary and Judicial Procedure 233 PART II. Case Supplement 315 Errata and Updates 317 II. Jurisdiction 319 A. In Personam Jurisdiction 319 1. Background and Constitutional Limitations 319 Keeton v. Hustler Magazine, Inc. 3J9 Notes and Problems 324 Calder v. Jones 325 Notes and Problems 328 Burger King Corporation v. Rudzewicz 329 Notes and Problems 334 Contents General In Personam Jurisdiction 336 Helicopteros Nacionales de Colombia, S.A. V. Hall 336 Notes and Problems 343 4. Waiver 344 a. Part)' Agreements Concerning Jurisdiction 344 b. Involuntary' Wai\er 344 Insurance Corporation of Ireland v. Compagnie de Bauxites de Guinee 345 Notes and Problems 351 c. The Requirement of Notice 352 D. Venue 352 1. Introductory Note 352 Leroy v. Great Western United Corp. 352 Notes and Problems 358 2. Transfer Under 28 U.S.C. SSH04 and 1406 and Forum Non Conveniens 358 Piper Aircraft Co. v. Reyno 358 Notes and Problems 365 E. Federal Subject Matter Jurisdiction 365 1. Federal Question Jurisdiction 365 Franchise Tax Board v. Construction Laborers Vacation Trust 365 Notes and Problems 372 III. The : Erie Problem 375 A. State Law in Federal Courts 375 1 . When State Law Must Be Applied 375 IV. Remedies 377 B. Money Damages 377 Evans v. JeffD. 379 Notes and Problems 383 4. Costs 384 VI. Join ider of Claims and Parties 387 E. Class Actions 387 Phillips Petroleum v. Shutts 387 Notes and Problems 393 VII. Discover* 395 VIU. Pre-Trial Disposition 397 A. Summary Judgment 397 IX. Trials 399 B. Right to Jury Trial 399 2. Constitutional Standard 399 C. Juror Selection McDonough Power Equipment, Inc. v. 399 Greenwood 399 XI. Contents Notes and Problems 405 D. Judicial Control of Jurv Action 406 ~. New Trial 406 b. Jun Misconduct 406 In re Beier/v Hills Fire Litigation 406 d. Remittitur and Additur 413 .\keTmanis v. Sea-Land Senice. Inc. 413 Notes and Problems 41" Respect for Judgments 419 B. Collateral Estoppel 419 4. Mutualib. of Elstoppel 419 C. Exceptions to the Rules of Res Judicata and Collateral Estoppel 420 1. Res Judicata 420 Federated Department Stores. Inc. v. \foitie 420 Notes and Problems 426 2. Collateral Estoppel 427 D. Full Faith and Credit to Judgments 428 Note: UnderwTiten National Insurance Co. \ . North Carolina Life and Accident and Health Insurance Guaranh .Association 428 TABLE OF CASES Principal cases are italicized. Akermams v. Sea-Land Service, Inc. 4J3 Allen V. McCurn 427 Arcudi v. Stone & Webster Engineering Corp. 373 Batson v. Kentucky 405 Beverly Hills Fire Litigation, In re 406 Burger King Corporation v. Rudzewicz 329 Calder v. Jones 325 Delta Airlines, Inc. \. August 379, 385 Evans V. Jeff D. 379 Federated Department Stores, Inc. v. Moitie 420 Franchise Tax Board v. Construction Laborers Vacation Trust 365 Harlow V. Fitzgerald 397 Helicopteros Nacionales de Colombia, S.A. v. Hall 336 Holland, In re 399 Insurance Corporation of Ireland v. Compagnie de Bauxites de Guinee 345 Katz V. Carte Blanche Corp. 394 Keeton v. Hustler Magazine 3J9 Kremer v. Chemical Construction Corp. 427 Leroy v. Great Western United Corp. 352 McDonough Power Equipment, Inc. v. Greenwood 399 Marek \. Chesney 377 Phillips Petroleum v. Shutts 387 Piper Aircraft Co. v. Reyno 358 Reiter v. Sonotone 427 Stone & Webster Engineering Corp. v. Ilsiey 373 Swain v. Alabama 405 Underwriters National Assurance Co. v. North Carolina Life and Accident and Health Insurance Guaranty Assn. 428 United States v. Mendoza 419 United States v. Stauffer Chemical Co. 419 PREFACE This volume is intended to serve as a rules pamphlet for any Civil Procedure course. I have also taken the opportunitv- to include significant cases decided since the publication of the first edition of Jonathan M. Landers's and James Martin's casebook. Civil Procedure. Stephen C. Yeazell This preface would not be complete without a brief word about my co-author, the late Jim Martin. Jim's involvement with Civil Procedure began v\hen the project was a mere gleam in our eyes. He worked with it during two years of writmg, one year of editing and publishing, and the several supplements since then. Jim always brought high intelligence and a deep grasp of civil procedure, an excellent teacher's eye for effective classroom use, and a never failing wit and good cheer. I will miss his knowledge of our subject matter and his dedication to this project, which continued and flourished until the end. We will sorely miss him. But we are nourished with the knov\ledge that his intelli- gence and scholarship will always be a part of our world. Jonathan \f. Landers May, 1986 PARTI RULES AND STATUTES FEDERAL RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS As Amended through July 1, 1986 TABLE OF RULES Scope of Rules — One Fonn of Action Rule 1. Scope of Rules 2. One Form of Action Commencement of Action: Service of Process, Pleadings, Motions, and Orders Rule 3. Commencement of Action 4. Process (a) Summonses: Issuance (b) Same: Form (c) Service (d) Summons and Complaint: Personal Service and Service by Mail (e) Same: Senice upon Party Not Inhabitant of or Found v /ithin State (f) Territorial Limits of Effective Service (g) Return (h) (i) Amendment Alternative Provisions for Service in a Foreign Country (i) Summons: Time Limit for Service 5. Service and Filing of Pleadings and Other Papers (a) Service: When Required (b) Same: How Made (c) Same: Numerous Defendants (d) Filing (e) Filing with the Court Defined 6. Time (a) Computation (b) Enlargement (c) Unaffected bv Expiration of Term. Rescinded Feb. 28, 1966 1966, effective Jul; (d) For Motions-:- Affidavits (e) Additional Time after Service by Mail Federal Rules of Civil Procedure Pleadings and Motions Rule 7. Pleadings Allowed; Form of Motions (a) Pleadings (b) Motions and Other Papers (c) Demurrers. Pleas, Etc , Abolished 8. General Rules of Pleading (a) Claims for Relief (b) Defenses; Form of Denials (c) Affirmative Defenses (d) Effect of Failure to Deny (e) Pleading to Be Concise and Direct; Consistency (f ) Construction of Pleadings 9. Pleading Special Matters (a) Capacity (b) Fraud, Mistake, Condition of the Mind (c) Conditions Precedent (d) Official Document or Act (e) )udgment (f) Time and Place (g) Special Damage (h) Admiralty and Maritime Claims 10. Form of Pleadings (a) Caption; Names of Parties (b) Paragraphs; Separate Statements (c) Adoption b\ Reference; Exhibits 1 1. Signing of Pleadings, Motions, and Other Papers; Sanctions 12. Defenses and Obiections — When and How Presented — by Pleading or Motion - Motion for Judgment on the Pleadings (a) When Presented (b) How Presented (c) Motion for Judgment on the Pleadings (d) Preliminary Hearings (e) Motion for More Definite Statement (f) Motion to Strike (g) Consolidation of Defenses in Motion (h) Waiver or Presenation of Certain Defenses n. Counterclaim and Cross-Claim (a) Compulsory Counterclaims (b) Permissive Counterclaims (c) Counterclaim Exceeding Opposing Claim (d) Counterclaim against the United States (e) Counterclaim Maturing or .Acquired after Pleading (f) Omitted Counterclaim (g) Cross-Claim against Co-Party (h) Joinder of .Additional Parties (i) Separate Trials; Separate Judgments 14. Third-Party Practice (a) When Defendant May Bring in Third Party (b) When Plaintiff May Bring in Third Party (c) Admiralty and Maritime Claims H*f^w?iii Jh1IIB> ST C«Mtt. fIBBBtflUC : ;mii suanuantaiisi Ttisannc tit -^nwTnnnwTTT w Ctiiiiiiriii ' to < oBt cviifBuiiE imiaic --^-_^^ _ : __ jjii^ Viiau^nuan t0 3EICItlIII£ ^niruE P:wii>"^ ?iaiiTnff :iiui -jfiEmianr. ^jt?"'^*^' Ob iisi Bsir m imcnsr fa I tuimiE^ar msiuaiiis: '♦THtlPlinTrr' i^iinvmcHngrP •=■ iuin^E' '*Hir wygtrnw* ' ft', ^tjocrsmi ' "■l!IlllSS5vr r-i iiitEsnitsiEer a. ?iQx*aiu5iis X j, "'™« -^i^ian e ' t«m»*a=si jr ^inuuiiimu: iALuav-giimn fa 'f'miisssve iiiUE^omun ^ummumai fir ^arac? ii Zaestb I 111 - — ■ - - ff.*iii dr '*^'»i*uiiiii' ■ Fi I'iin ^'fflWT* Federal Rules of Civil Procedure V. Depositions and Discovery Rule 26. General Provisions Governing Discover> (a) Discover>' Methods (b) Discoven.' Scope and Limits (1) In General (2) Insurance Agreements (?) Trial Preparation: Materials (4) Trial Preparation: Experts (c) Protective Orders (d) Sequence and Timing of Discoverv' (e) Supplementation of Responses (f) Discover. Conference (g) Signing of Discoverv Requests. Responses, and Objections 27. Depositions before Action or Pending Appeal (a) Before Action (1) Petition (2) Notice and Service (}) Order and Examination (4) Use of Deposition (b) Pending .'\ppeal (c) Perpetuation by Action 28. Persons before Whom Depositions May Be Taken (a) Within the United States (b) In Foreign Countries (c) Disqualification for Interest 29. Stipulations Regarding Discovery Procedure ?0 Depositions upon Oral Examination (a) When Depositions Ma\ be Taken (b) Notice of Examination: General Requirements; Special Notice; Non-Steno- graphic Recording; Production of Documents and Things; Deposition of Or- ganization; Deposition by Telephone (c) Examination and Gross-Examination; Record of Examination; Oath; Objec- tions (d) Motion to Terminate or Limit Examination (e) Submission to Witness; Changes; Signing (f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing (g) Failure to .Attend or to Serve Subpoena; Expenses 31. Depositions upon Written Queshons (a) Serving Questions; Notice (b) Officer to Take Responses and Prepare Record (c) Notice of Filing 32. Use of Depositions in Court Proceedings (a) Use of Depositions (b) Objection to Admissibility (c) Effect of Taking or Using Depositions. .Abrogated by amendment Nov. 20, 1972 (d) Effect of Errors and Irregularities in Depositions (1) As to Notice (2) As to Disqualification of Officer (3) As to Taking of Deposition (4) As to Completion and Return of Deposition Federal Rules of Civil Procedure Interrogatories to Parties (a) Availability; Procedures for Use (b) Scope; Use at Trial (c) Option to Produce Business Records Production of Documents and Things and Entr\ upon Land for Inspection and Other Purposes (a) Scope (b) Procedure (c) Persons Not Parties Physical and Mental Examination of Persons (a) Order for Examination (b) Report of Examining Physician Requests for Admission (a) Request for Admission (b) Effect of Admission Failure to Make or Cooperate in Discovery: Sanctions (a) Motion for Order Compelling Discovery (1) Appropriate Court (2) Motion (?) Evasive or Incomplete Answer (4) Award of Expenses of Motion (b) Failure to Comply with Order (1) Sanctions by Court in District Where Deposition Is Taken (2) Sanctions by Court in Which Action Is Pending (c) Expenses on Failure to Admit (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogato- ries or Respond to Request for Inspection (e) Subpoena of Person m Foreign Country, Abrogated by amendment Apr. 29, 1980, eff. Aug. 1, 1980 (f) Expenses against United States (g) Failure to Participate in the Framing of a Discovery Plan 38. [ury Trial of Right (a) Right Preserved (b) Demand (c) Same: Specification of Issues (d) Waiver (e) Admiralty and Maritime Claims 39. Trial by Jury or by the Court (a) By Jury (b) By the Court (c) .\dvisory Jury and Trial by Consent 40. Assignment of Cases for Trial 41. Dismissal of Actions (a) Voluntary Dismissal: Effect Thereof (1) By Plaintiff; by Stipulahon (2) By Order of Court (b) Involuntary Dismissal: Effect Thereof (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim (d) Costs of Previously Dismissed Action Federal Rules of Civil Procedure 42. Consolidation; Separate Trials (a) Consolidation (b) Separate Trials 43. Taking of Testimony (a) Form (b) Scope of Examination and Cross-Examination Abrogated by amendment Nov. 20, 1972, and expressly approved by P.L. 93-595, effective July 1, 1975 (c) Record of Excluded Evidence. Abrogated by amendment Nov. 20, 1972, and expressly approved by P.L. 93-595, effective |uly 1, 1975 (d) Affirmation in Lieu of Oath (e) Evidence on Motions (f) Interpreters 44. Proof of Official Record (a) Authentication ( 1 ) Domestic (2) Foreign (b) Lack of Record (c) Other Proof 44. 1 Determination of Foreign Law 45. Subpoena (a) For Attendance of Witnesses; Form; Issuance (b) For Production of Documentary Evidence (c) Service (d) Subpoena for Taking Depositions; Place of Examination (e) Subpoena for a Hearing or Trial (f) Contempt 46. Exceptions Unnecessary 47. )urors (a) Examination of Jurors (b) Alternate jurors 48. Juries of Less than Twelve — Majority Verdict 49. Special Verdicts and Interrogatories (a) Special Verdicts (b) General Verdict Accompanied by Answer to Interrogatories 50. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict (a) Motion for Directed Verdict: When Made; Effect (b) Motion for Judgment Notwithstanding the Verdict (c) Same: Conditional Rulings on Grant of Motion (d) Same: Denial of Motion 51. Instructions to Jury: Objection 52. Findings bv the Court (a) Effect (b) Amendment 53. Masters (a) Appointment and Compensation (b) Reference (c) Powers (d) Proceedings (1) Meetings (2) Witnesses (3) Statement of .\ccounts (e) Report (1) Contents and Filing Federal Rules of Civil Procedure (2) In Non-)ur\' Actions (3) In |ur\' Actions (4) Stipulation as to Findings (5) Draft Report VII. Judgment Rule 54. Judgments; Costs (a) Definition; Form (b) Judgment upon Multiple Claims or Involvmg Multiple Parties (c) Demand for Judgment (d) Costs 55. Default (a) Entrv- (b) Judgment (1) B> the Clerk (2) By the Court (c) Setting Aside Default (d) Plaintiffs, Counterclaimants, Cross-Claimants (e) Judgment against the United States 56. Summary Judgment (a) For Claimant (b) For Defending Party (c) Motion and Proceedings Thereon (d) Case Not Fully Adjudicated on Motion (e) Form of Affidavits; Further Testimony; Defense Required (f) When Affidavits Are Unavailable (g) Affidavits Made in Bad Faith 57. Declaratory Judgments 58. Entry of Judgment 59. New Trials; Amendment of Judgments (a) Grounds (b) Time for Motion (c) Time for Serving Affidavits (d) On Initiative of Court (e) Motion to Alter or Amend a Judgment 60. Relief from Judgment or Order (a) Clerical Mistakes (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. 61. Harmless Error 62. Stay of Proceedings to Enforce a Judgment (a) Automatic Stay; Exceptions — Injunctions, Receiverships, and Patent Accountings (b) Stay on Motion for New Trial or for Judgment (c) Injunction Pending Appeal (d) Stay upon Appeal (e) Stay in Favor of the United States or Agency Thereof (f) Stay According to State Law (g) Power of Appellate Court Not Limited (h) Stay of Judgment as to Multiple Claims or Multiple Parties 63. Disability of a Judge Federal Rules of Civil Procedure V'lll. Provisional and Final Remedies and Special Proceedings Rule 64. Seizure of Person or Propert> 65. Injunctions (a) Preliminary Injunction ( 1 ) Notice (2) Consolidation of Hearing with Trial on Merits (b) Temporary' Restraining Order; Notice; Hearing; Duration (c) Security (d) Form and Scope of Injunction or Restraining Order (e) Employer and Employee; Interpleader; Constitutional Cases 65. Security: Proceedings against Sureties 66. Receivers Appointed by Federal Courts 67. Deposit in Court 68. Offer of judgment 69. Execution (a) In General (b) Against Certain Public Officers 70. Judgment for Specific Acts; Vesting Title 71. Process in Behalf of and against Persons Not Parties 71 A. Condemnation of Property (a) Applicabilitv' of Other Rules (b) Joinder of Properties (c) Complaint (d) Process (e) Appearance or Answer (f) Amendment of Pleadings (g) Substitution of Parties (h) Trial (i) Dismissal of Action (j) Deposit and Its Distribution (k) Condemnation under a State's Power of Eminent Domain (1) Costs IX. Magistrates Rule 72. Magistrates; Pretrial Matters (a) Nondispositive Matters (b) Dispositive Motions and Prisoner Petitions 73. Magistrates; Trial by Consent and Appeal Options (a) Powers; Procedures (b) Consent (c) Normal Appeal Route (d) Optional Appeal Route 74. Method of Appeal from Magistrate to District judge under Tide 28 U.S.C. \636(c)(4) and Rule 73(d) (a) When Taken (b) Notice of Appeal; Service (c) Stay Pending Appeal (d) Dismissal 75. Proceedings on Appeal from Magistrate to District judge under Rule 73(d) (a) Applicabilitv (b) Record on Appeal 10 Federal Rules of Civil Procedure Rule 1 (1) Composition (2) Transcript (3) Statement in Lieu of Transcript (c) Time for Filing Briefe (d) Length and Form of Briefe fel Oral .\rgument 76. Judgment of the District Judge on the Appeal under Rule ~S( d i and Cosb (a) EntT> of Judgment (b) Stay of Judgment (c) Costs ST UNE L X. District Courts and Clerks Rule 7~. District Courts and Clerks ia) District Courts .\liAa\-s Open (b) Trials and Hearings; Orden in Chambers (c) Clerk's Office and Orders by Clerk (d) Notice of Orders or Judgments 78. Motion Day 79. Books and Records Kept by the Clerk and Entries Therein (a) Ci«I Docket (b) Civil Judgments and Orden (c) Indices: Calendars (dl Other Books and Records of the Clerk 80. Stenographer; Stenographic Report or Transcript as E\idence (a) Stenographer, .\brogated Dec. 2". 1946. effective March 19. I94S (b) Official Stenographer, .abrogated Dec. 2". 1946. effective March 19. 1945 (c) Stent^raphic Report or Transcript as Evidence XI. General Provisions Rule 81. .Applicability in General (a) To What Proceedings Applicable (b) Scire Facias and Mandamus (cl Removed .Actions (d) District of Columbia; Courts and Judges .Abrogated Dec. 29. 194S. effective Oct. 20, l'M9 (e) Law .Applicable (f) References to Officer of the United States 82. Jurisdiction and \ enue Unaffected 83. Rules by District Courts 84. Forms 85. Title 86. Effective Date I. Scope of Rules — One Form of .Action Rule 1 . Scope of Rules These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equih' or in 11 Rule 1 Federal Rules of Civil Procedure adniiralh', with tlic exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of e\erv action. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966. Rule 2. One Form of Action There shall be one form of action to be known as "civil action. II. Commencement of Action; Service of Process, Pleadings, Motions, and Orders Rule 3. Commencement of Action A civil action is commenced by filing a complaint with the court. Rule 4. Process (a) Summons: Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiffs attorney, who shall be responsible for prompt service of the summons and a copy of the complaint. Upon request of the plaintiff separate or addi- tional summons shall issue against any defendants. As amended April 29, 1980, eff. Aug. 1, 1980; April 28, 1982, effective Feb. 26, 1983. (b) Same: Form. The summons shall be signed b>' the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiffs attorney, if any, otherwise the plaintiff's address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. When, under Rule 4{e), service is made pursuant to a statute or rule of court of a state, the summons, or notice, or order in lieu of summons shall correspond as nearly as may be to that required by the statute or rule. As amended Jan. 21, 1963, eff. July 1. 1963. (c) Service. (1) Process, other than a subpoena or a summons and complaint, shall be served by a United States marshal or deputy United States marshal, or by a person specially appointed for that purpose. 12 Federal Rules of Civil Procedure Rule 4 (2)(A) A summons and complaint shall, except as provided in subparagraphs (B) and (C) of this paragraph, be served by any person who is not a party and is not less than 18 years of age. (B) A summons and complaint shall, at the request of the party seeking service or such party's attorney, be served by a United States marshal or deputy United States marshal, or by a person specially appointed by the court for that purpose, only — (i) on behalf of a party authorized to proceed in forma pauperis pursuant to Title 28, U.S.C. S1915, or of a seaman authorized to proceed under Title 28, U.S.C. S1916, (ii) on behalf of the United States or an officer or agency of the United States, or (iii) pursuant to an order issued by the court stating that a United States marshal or deputy United States marshal, or a person specially appointed for that purpose, is required to serve the summons and complaint in order that service be properly effected in that particular action. (C) A summons and complaint may be served upon a defendant of any class referred to in paragraph (1) or (3) of subdivision (d) of this rule — (i) pursuant to the law of the State in which the district court is held for the service of summons or other like process upon such defendant in an action brought in the courts of general jurisdiction of that State, or (ii) by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to form 18- A and a return envelope, postage prepaid, addressed to the sender. If no acknowledg- ment of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner prescribed by subdivision (d)(1) or (d)(3). (D) Unless good cause is shown for not doing so the court shall order the payment of the costs of personal service by the person served if such person does not complete and return within 20 days after mailing, the notice and acknowledgment of receipt of summons. (E) The notice and acknowledgment of receipt of summons and complaint shall be executed under oath or affirmation. (3) The court shall freely make special appointments to serve summonses and complaints under paragraph (2)(B) of this subdi\ision of this rule and all other process under paragraph (1) of this subdivision of this rule. As amended Apr. 29, 1980, eff. Aug. 1, 1980; April 28, 1982, effective Feb. 26, 1983. (d) Summons and Complaint: Personal Service and Service by Mail. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows: 13 Rule 4 Federal Rules of Civil Procedure (1) Upon an indi\idual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appoint- ment or by law to receive service of process. (2) Upon an infant or an incompetent person, by serving the summons and complaint in the manner prescribed by the law of the state in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. (3) Upon a domestic or foreign corporation or upon a partnership or other incorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a manag- ing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant. (4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee desig- nated by the United States attorney in a writing filed with the clerk of the court and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validit) of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency. As amended Jan. 21, 1963, eff. July 1, 1963. (5) Upon an officer or agency of the United States, by serving the United States and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation the copy shall be delivered as provided in paragraph (3) of this subdivision of this rule. (6) Upon a state or municipal corporation or other governmental organiza- tion thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant. (e) Same: Service upon Party Not Inhabitant of or Found within State. Whenever a statute of the United States or an order of court thereunder provides for service of a summons, a notice, or an order in lieu of summons upon a party not an inhabitant of or found within the state in which the district court is held, service may be made under the circumstances and in the manner prescribed by the statute or order, or, if there is no provision therein prescribing the manner of service, in a manner stated in this rule. Whenever a statute or 14 Federal Rules of Civil Procedure Rule 4 rule of court of the state in which the district court is held pro\ides ( 1 ) for ser\'ice of a summons, a notice, or an order in heu of summons upon a parts' not an inhabitant of or found within the state, or (2) for service upon or notice to him to appear and respond or defend in an action by reason of the attach- ment or garnishment or similar seizure of his properh located w ithin the state, service may in either case be made under the circumstances and in the manner prescribed in the statute or rule. As amended Jan. 21. 1963. eff. Julv 1, 1963; April 28, 1982, effective Feb. 26, 1983. (f ) Territorial Limits of Effective Service. All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state. In addition, persons who are brought in as parties pursuant to Rule 14, or as additional parties to a pending action or a counterclaim or cross-claim therein pursuant to Rule 19, may be served in the manner stated in paragraphs (l)-(6) of subdivision (d) of this rule at all places outside the state but within the United States that are not more than 100 miles from the place in which the action is commenced, or to which it is assigned or transferred for trial; and persons required to respond to an order of commitment for civil contempt may be served at the same places. A subpoena mav be served within the territorial limits provided in Rule 45. As amended Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966. (g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States marshal or his deputy, he shall make affidavit thereof. If service is made under subdivision (c)(2)(C)(ii) of this rule, return shall be made by the sender's filing with the court the acknowledgment re- ceived pursuant to such subdivision. Failure to make proof of service does not affect the validity of the service. As amended April 28, 1982, effechve Feb. 26, 1983. (h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. (i) Alternative Provisions for Service in a Foreign Country. (1) Manner. When the federal or state law referred to in subdivision (e) of this rule authorizes service upon a party not an inhabitant of or found within the state in which the district court is held, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and 15 Rule 4 Federal Rules of Civil Procedure complaint is made: (A) in the manner prescribed by the law of the foreign countr>' for service in that coimtr>' in an action in any of its courts of general jurisdiction; or (B) as directed by the foreign authority in response to a letter rogatory, when service in either case is reasonably calculated to give actual notice; or (C) upon an individual, by delivery to him personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or (D) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be ser\'ed; or (E) as directed by order of the court. Ser\ice under (C) or (E) above may be made by an}' person who is not a party and is not less than 18 years of age or who is designated by order of the district court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service. (2) Return. Proof of service may be made as prescribed by subdi\ision (g) of this rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph (1) (D) of this subdi\ision, proof of service shall include a receipt signed by the addressee or other evidence of deliverv to the addressee satisfactory to the court. Added Jan. 21, 1963. eff. July 1, 1963. (j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. This subdivision shall not apply to service in a foreign country pursuant to subdivision (i) of this rule. Added April 28, 1982, effective Feb. 26, 1983. Advisory Committee Notes, 1963 and 1980 Amendments; "Statement," 1982 Amendments 1963 amendments Subdivision (b). Under amended subdivision (e) of this rule, an action may be commenced against a nonresident of the State in w hich the district court is held by complying with State procedures. Frequently the form of the summons or notice required in these cases by State law differs from the Federal form of summons described in present subdivision (b) and exemplified in Form 1. To avoid confusion, the amendment of subdivision (b) states that a form of summons or notice, corresponding "as nearly as ma\ be" to the State form, shall be employed. See also a corresponding amendment of Rule 12(a) with regard to the time to answer. Subdivision (e). . . . Although an action commenced in a State court by attachment may be removed to the Federal court if ordinarv conditions for re- 16 Federal Rules of Civil Procedure Rule 4 moval are satisfied, see 28 U.S.C. SH50; Rorick v. Devon Syndicate. Ltd., 307 U.S. 299 (1939); Clark v. Wells, 203 U.S. 164 (1906). there has heretofore been no provision recognized by the courts for commencing an original Federal civil action by attachment. See Currie, Attachment and Garnishment in the Federal Courts, 59 Mich. L. Rev. 337 (1961), arguing that this result came about through historical anomaly. . . . The amendment will now permit the institution of original Federal actions against nonresidents through the use of familiar State procedures bv which property of these defendants is brought within the custody of the court and some appropriate service is made upon them. The necessih' of satisfying subject-matter jurisdictional requirements and re- quirements of venue will limit the practical utilization of these methods of effect- ing service. Within those limits, however, there appears to be no reason for denying plaintiffs means of commencing actions in Federal courts which are generally available in the State courts. See 1 Barron & Holtzoff, supra, at 374-80; Nordbye, Comments on Proposed .Amendments to Rules of Civil Procedure for the United States District Courts, 18 F.R.D. 105. 106 (1956); Note, 34 Corn. L.Q. 103 (19481; Note. 13 So. Calif. L. Rev. 361 (1940). If the circumstances of a particular case satisfy the applicable Federal law (first sentence of Rule 4(e). as amended; and the applicable State law (second sen- tence), the part\ seeking to make the service may proceed under the Federal or the State law. at his option. . . . Subdivision (f). The first sentence is amended to assure the effectiveness of ser\ice outside the territorial limits of the State in all the cases in which any of the rules authorize service beyond those boundaries. Besides the preceding provi- sions of Rule 4. see Rule 71A(d)(3). In addition, the new second sentence of the subdivision fiermits effective service within a limited area outside the State in certain special situations, namely, to bring in additional parties to a counterclaim or crossclaim (Rule 13(h)). impleaded parties (Rule 14), and indispensable or conditionally necessary parties to a pending action (Rule 19); and to secure compliance with an order of commitment for ci\ il contempt. In those situations effective service can be made at points not more than 100 miles distant from the courthouse in which the action is commenced, or to which it is assigned or transferred for trial. The bringing in of parties under the 100-mile provision in the limited situa- tions enumerated is designed to promote the objective of enabling the court to determine entire controversies. In the light of present-day facilities for communi- cation and travel, the territorial range of the ser\ ice allowed, analogous to that which applies to the ser\ice of a subpoena under Rule 45(e)(1). can hardly work hardship on the parties summoned. The provision will be especially useful in metropolitan areas spanning more than one State. Any requirements of subject- matter jurisdiction and venue will still have to be satisfied as to the parties brought in. although these requirements will be eased in some instances when the parties can be regarded as "ancillary." . . . 1980 AMENDMENTS Subdivision (c). The purpose of this amendment is to authorize service of process to be made by an\ person who is authorized to make service in actions in 17 Rule 4 Federal Rules of Civil Procedure the courts of general jurisdiction of the state in which the district court is held or in which service is made. There is a troublesome ambiguity in [former] Rule 4. Rule 4(c) directs that all process is to be served by the marshal, by his deput>', or by a person specially appointed by the court. But Rule 4(d)(7) authorizes ser\'ice in certain cases "in the manner prescribed by the law of the state in which the district court is held. ..." And Rule 4(e), which authorizes service beyond the state and service in quasi in rem cases when state law permits such service, directs that "service may be made . . . under the circumstances and in the manner prescribed in the (state) statute or rule." State statutes and rules of the kind referred to in Rule 4(d)(7) and Rule 4(e) commonly designate the persons who are to make the service provided for, e. g., a sheriff or a plaintiff. When that is so, may the persons so designated by state law make service, or is service in all cases to be made by a marshal or by one specially appointed under present Rule 4(c)? The commentators have noted the ambiguity and have suggested the desirability of an amendment. See 2 Moore's Federal Practice 114.08 (1974); Wright & Miller, Federal Practice and Procedure: Civil )il092 (1969). And the ambiguity has given rise to unfortunate results. See United States for the use of Tanos v. St. Paul Mercury Ins. Co., 361 F.2d 838 (5th Cir. 1966); Veeck v. Commodity Enterprises, Inc., 487 F.2d 423 (9th Cir. 1973). The ambiguity can be resolved by specific amendments to Rules 4(d)(7) and 4(e). but the Committee is of the view that there is no reason why Rule 4(c) should not generally authorize service of process in all cases by anyone authorized to make service in the courts of general jurisdiction of the state in which the district court is held or in which service is made. The marshal continues to be the obvious, always effective officer for service of process. 1982 AMENDMENTS [Congress did not approve the 1982 amendments in the form presented by the Supreme Court. Instead, it modified service procedures. Representative Edwards was a member of the House Judiciary Committee and presented a "statement" that sounds like a committee report but does not purport to be one. Parts of that report are quoted below.] The amendments to Rule 4 of the Federal Rules of Ci\ il Procedure [proposed by the Supreme Court] were intended primarily to relieve United States marshals of the burden of serving summonses and complaints in private ci\il actions. Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure), 16 (Advisory Committee Note). The Committee received numerous complaints that the changes not only failed to achieve that goal, but that in the process the changes saddled litigators with flawed mail service, deprived litigants of the use of effective local procedures for service, and created a time linnt for service replete with ambiguities that could onlv be resolved bv costly litigation. See House Report No. 97-662, at 2-4 (1982).' In order to consider these criticisms. Congress enacted Public Law 97-227, postponing the effective date of the proposed amendments to Rule 4 until Oc- tober 1, 1983. Accordingly, in order to help shape the policy behind, and the form of, the proposed amendments. Congress must enact legislation before Oc- tober 1. 1983. 18 Federal Rules of Civil Procedure Rule 4 With that deadline and purpose in mind, consultations were held with repre- sentatives of the Judicial Conference, the Department of Justice, and others who had voiced concern about the proposed amendments. H.R. 7154 is the product of those consultations. The bill seeks to effectuate the policy of relie\ing the Mar- shals Ser\ice of the dut>' of routinely ser\ing summonses and complaints. It provides a svstem of ser\ice by mail modeled upon a system found to be effective in California, and finally, it makes appropriate stylistic, grammatical, and other changes in Rule 4. Need for the Legislation 1. Current Rule 4 Rule 4 of the Federal Rules of Ci\il Procedure relates to the issuance and service of process. SubsecHon (c) authorizes service of process by personnel of the Marshals Service, by a person specially appointed by the Court, or "by a person authorized to serve process in an action brought in the courts of general jurisdic- tion of the state in which the district court is held or in which service is made." Subsection (di describes how a summons and complaint must be served and designates those persons who must be served in cases involving specified catego- ries of defendants. Mail service is not directly authorized. Subsection (d)(~), however, authorizes service under the law of the state in which the district court sits upon defendants described in subsections (dXl) (certain individuals) and (dx^) (organizations). Thus, if state law authorizes service by mail of a summons and complaint upon an individual or organization described in subsections (d)(1) or (3), then subsection (dl(7) authorizes service by mail for United States district courts in that state. 2 Reducing the Role of .Marshals The Supreme Court's proposed modifications of Rule 4 were designed to alleviate the burden on the Marshals Service of serving summonses and com- plaints in private civil actions. Appendix II, at 7 (Report of the Committee on Rules of Practice and Procedure), 16 (Advisory Committee Note). While the Committee received no complaints about the goal of reducing the role of the Marshals Service, the Court's proposals simply failed to achieve that goal. See House Report No. 97-662, at 2-3 (1982). The Court's proposed Rule 4(ch2)(B) required the Marshals Senice to sene summonses and complaints "pursuant to any statutory provision expressly pro\ id- ing for service by a United States Marshal or his deputy." One such statutory- provision is 28 U.S.C. 569(b). which compels marshals to "execute all lawful writs, process and orders issued under authority of the United States, including those of the courts. ..." (emphasis added). Thus, any party could have invoked 28 U.S.C. 569(b) to utilize a marshal for service of a summons and complaint, thereby thwarting the intent of the new subsection to limit the use of marshals. The Justice Department acknowledges that the proposed subsection did not ac- complish its objectives- Had 28 use. 569(bl been inconsistent with proposed Rule 4 not match the name of the defendant, or because it may be difficult to determine whether mail has been "unclaimed" or "refused," the latter apparently providing the sole basis for a default judgment. H.R. 7154 provides for a system of service by mail similar to the system now used in California. See Cal. Civ. Pro. \415.30 (West 1973). Service would be by ordinarv' mail with a notice and acknowledgment of receipt form enclosed. If the defendant returns the acknowledgment form to the sender within 20 days of mailing, the sender files the return and service is complete. If the acknowledg- ment is not returned within 20 days of mailing, then service must be effected through some other means provided for in the Rules. This system of mail service avoids the notice problems created by the registered and certified mail procedures proposed by the Supreme Court. If the proper person receives the notice and returns the acknowledgment, service is complete. If the proper person does not receive the mailed form, or if the proper person receives the notice but fails to return the acknowledgment form, another method of service authorized by law is required. In either instance, however, the defen- dant will receive actual notice of the claim. In order to encourage defendants to return the acknowledgment form, the court can order a defendant who does not return it to pay the costs of service unless the defendant can show good cause for the failure to return it. 4. The Local Option The Court's proposed amendments to Rule 4 deleted the provision in current subsection (d)(7) that authorizes service of a summons and complaint upon indi- viduals and organizations "in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. " The Committee received a varieh of complaints about the deletion of this provision. Those in favor of preserving the local option saw no reason to forego systems of service that had been successful in achiev ing effective notice. H.R. 7154 carries forward the policy of the current rule and permits a partv' to serve a summons and complaint upon individuals and organizations described in Rule 4(d)(1) and (3) in accordance with the law of the state in which the district court sits. Thus, the bill authorizes four methods of serving a summons and 20 Federal Rules of Civil Procedure Rule 4 complaint on such defendants: (1) service by a nonpartv' adult (Rule 4(c)(2)(A)); (2) service by personnel of the Marshals Service, if the party qualifies, such as because the party is proceeding in forma pauperis (Rule 4(c)(2)(B)); (3) service in any manner authorized by the law of the state in which the district court is held (Rule 4(c)(2)(C)(i)); or (4) service by regular mail with a notice and acknowledg- ment of receipt form enclosed (Rule 4(c)(2)(C)(ii)). 5. Time Limits Rule 4 does not currently provide a hme limit within which service must be completed. Primarily because United States marshals currently effect service of process, no time restriction has been deemed necessary, Appendix II, at 18 (Advisory Committee Note). Along with the proposed changes to subdivisions (c) and (d) to reduce the role of the Marshals Service, however, came new subdivi- sion (j), requiring that service of a summons and complaint be made within 120 days of the filing of the complaint. If service were not accomplished within that time, proposed subdivision (j) required that the action "be dismissed as to that defendant without prejudice upon motion or upon the court's own initiative." Service by mail was deemed made for purposes of subdivision (j) "as of the date on which the process was accepted, refused, or returned as unclaimed." H.R. 7154 adopts a policy of limiting the time to effect service. It provides that if a summons and complaint have not been served within 120 days of the filing of the complaint and the plaintiff fails to show "good cause" for not completing service within that time, then the court must dismiss the action as to the unserved defendant. H.R. 7154 ensures that a plaintiff will be notified of an attempt to dismiss the action. If dismissal for failure to serve is raised by the court upon its own motion, the legislation requires that the court provide notice to the plaintiff. If dismissal is sought by someone else. Rule 5(a) of the Federal Rules of Civil Procedure requires that the motion be served upon the plaintiff. Like proposed subsection (j), H.R. 7154 provides that a dismissal for failure to serve within 120 days shall be "without prejudice." Proposed subsection (j) was criticized by some for ambiguity because, it was argued, neither the text of subsection (j) nor the Advisory Committee Note indicated whether a dismissal without prejudice would toll a statute of limitation. See House Report 97-662, at 3-4 (1982). The problem would arise when a plaintiff files the complaint within the applicable statute of limitahon period but does not effect service within 120 days. If the statute of limitation period expires during that period, and if the plaintiffs action is dismissed "without prejudice," can the plaintiff refile the complaint and maintain the action? The answer depends upon how the statute of limitation is tolled. If the law provides that the statute of limitation is tolled by filing and service of the complaint, then a dismissal under H.R. 7154 for failure to serve within the 120 days would, by the terms of the law controlling the tolling bar the plaintiff from later maintaining the cause of action. If the law provides that the statute of limitation is tolled by filing alone, then the status of the plaintiffs cause of action turns upon the plaintiffs diligence. If the plaintiff has not been diligent, the court will dismiss the complaint for failure to serve within 120 days, and the plaintiff will be barred from later maintaining the cause of achon because the statute of limitation has run. A dismissal without prejudice does not confer upon the plaintiff any rights that the plaintiff does otherwise possess and leaves a plaintiff 21 Rule 4 Federal Rules of Civil Procedure whose action has been dismissed in the same position as if the action had never been filed. If, on the other hand, the plaintiff has made reasonable efforts to effect service, then the plaintiff can move under Rule 6(b) to enlarge the time within which to serve or can oppose dismissal for failure to serve. A court would undoubtedly permit such a plaintiff additional time within which to effect service. Thus, a diligent plaintiff can preserve the cause of action. This result is consistent with the policy behind the time limit for service and with statutes of limitation, both of which are designed to encourage prompt movement of civil actions in the federal courts. Rule 5. Service and Filing of Pleadings and Other Papers (a) Service: When Required. E.xcept as otherwise pro\ided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be ser\ed upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designahon of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4. In an action begun by seizure of properh', in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure. As amended Jan. 21,' 1965, eff. July I, 1963; Mar. 30, 1970, eff. Julv 1, 1970. (b) Same: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the ser\ ice shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by deli\er- ing a_copy to him or by mailing it to him at his last known address or; if no address is known, by leaving it with the clerk of the court. Deliverv' of a copy v\ithin this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. (c) Same: Numerous Defendants. In any action in which there are unusu- ally large numbers of defendants, the court, upon motion or of its own initia- 22 Federal Rules of Civil Procedure Rule 6 ti\e, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense con- tained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. (d) Filing. All papers after the complaint required to be served upon a parb, shall be filed with the court either before service or within a reasonable time thereafter, but the court may on motion of a party or on its own initiative order that depositions upon oral examination and interrogatories, requests for docu- ments, requests for admission, and answers and responses thereto not be filed unless on order of the court or for use in the proceeding. As amended Apr. 29, 1980, eff. Aug. 1, 1980. (e) Filing with the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith trans- mit them to the office of the clerk. Rule 6. Time (a) Computation. In computing an\ period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the day of the next day which is not one of the aforementioned days. When the period of time prescribed or allov\ed is less than 1 1 days, intermediate Saturdays, Sun- days, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holida>" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Indepen- dence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or bv the state in which the district court is held. As amended Jan. 21, 196), eff. July 1, 1963; Mar. 1, 1971, eff. July 1, 1971; Apr. 29, 1985, eff. Aug. 1, 1985. 23 Rule 6 Federal Rules of Civil Procedure (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown ma\ at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), and (c)(2), 52(b). 59(b), (d) and (e), 60(b), and 74(aj, except to the extent and under the conditions stated in them. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. Julv 1, 1963; Dec. 4, 1967. eff. July 1, 1968; Apr. 28, 1983, eff. Aug. 1. 1983. (c) Unaffected by Expiration of Term. Rescinded Feb. 28, 1966, eff. JuK 1, 1966. (d) For Motions — Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be ser\ed not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affida\it, the affidavit shall be served with the motion; and, except as otherwise pro\ided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be ser\ed at some other time. (e) Additional Time after Service by Mail. Whene\er a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is ser\ed upon him by mail, 5 days shall be added to the prescribed period. III. Pleadings and Motions Rule 7. Pleadings Allowed; Form of Motions (a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-part\- complaint is served. No other pleading shall be al- lowed, except that the court may order a reply to an answer or a third-part\' answer. As amended Dec. 27, 1946, eff. March 19. 1948; Jan. 21, 1963, eff Julv 1, 1963. 24 Federal Rules of Civil Procedure Rule 8 (b) Motions and Other Papers. ( 1 ) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the reliefer order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (2) The rules applicable to captions and other matters of form of pleadings apply to all motions and other papers pro\ided for by these rules. (5) All motions shall be signed in accordance with Rule 11. (c) Demurrers, Pleas, Etc., Abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used. Advisory Committee Note, 198? Amendment One of the reasons sanctions against improper motion practice have been em- ployed infrequently is the lack of clarity of Rule 7. That rule has stated only generally that the pleading requirements relating to captions, signing, and other matters of form also apply to motions and other papers. The addition of Rule 7(b)(?) makes explicit the applicability of the signing requirement and the sanc- tions of Rule 11, which have been amplified. Rule 8. General Rules of Pleading (a) Claims for Relief A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-part>' claim, shall con- tain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entided. Relief in the alternative or of several different types may be demanded. (b) Defenses; Form of Denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the ad\erse party relies. If he is without knowledge or information suffi- cient to form a belief as to the truth of an a\erment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the a\erments denied. When a pleader intends in good faith to deny only a part or a qualifica- tion of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the a\erments of the preceding pleadmg, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, \\hen he does so intend to controvert all its averments. 25 Rule 8 Federal Rules of Civil Procedure including averments of the grounds upon which the court's jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11. (c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assump- tion of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, li- cense, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. (d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admit- ted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. (e) Pleading to Be Concise and Direct; Consistency. (1) Each a\erment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required. (2) A party may set forth two or more statements of a claim or defense alter- nately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternati\e statements. A partv' may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable, or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11. As amended Feb. 28, 1966, eff. July 1, 1966. (f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice. Rule 9. Pleading Special Matters (a) Capacity. It is not necessary to aver the capacit)' of a party to sue or be sued or the authority of a party to sue or be sued in a representati\e capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a part>' to sue or be sued in a representative capacity, he shall do so by specific negative a\ernient, which shall include such supporting particulars as are pcculiarK within the pleader's knowledge. 26 Federal Rules of Civil Procedure Rule 10 (b) Fraud, Mistake, Condition of the Mind. In all a\erments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularit}'. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions prece- dent have been performed or have occurred. A denial of performance or occur- rence shall be made specifically and with particularity. (d) Official Document or Act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdic- tion to render it. (f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. (g) Special Damage. When items of special damage are claimed, the\ shall be specificalK' stated. (h) Admiralty and Maritime Claims. .^ pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty' or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralt)', if is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15. The reference in Title 28, U.S.C. \il292(a)(3), to admiralty cases shall be construed to mean admiralty and mari- time claims within the meaning of this subdivision (h). Added Feb. 28, 1966, eff. Julv I, 1966; amended Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff. July 1, 1970. Rule 10. Form of Pleadings (a) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a 27 Rule 10 Federal Rules of Civil Procedure designation as in Rule 7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (c) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes. Rule 1 1 . Signing of Pleadings, Motions, and Other Papers; Sanctions Every pleading, motion, and other paper of a part)' represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when other- wise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an at- torney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person V ^ who signed it, a represented party, or both, an appropriate sanction, which may T'^^^v ^'i include an order to pav to the other party or parties the amount of the reasonable 1 +lu. expenses incurred because of the filing of the pleading, motion, or other paper, ^ ^jtVo*^ including a reasonable attorney's fee. d. As amended Apr. 20. 1983, eff. Aug. 1. 1983. 28 -^ioA d- c^i^/oi^/hdk kmev ' deiit Federal Rules of Civil Procedure Rule 11 Advisory Committee Notes, 1983 Amendments Since its original promulgation. Rule 1 1 has provided for the striking of pleadings and the impxDsition of disciplinarv sanctions to check abuses in the signing of pleadings. Its provisions have always applied to motions and other papers by virtue of incorporation by reference in Rule 7(b)(2). The amendment and the addition of Rule 7(bK?) expressly confirms this applicabilit\. Experience shows that in practice Rule 1 1 has not been effective in deterring abuses. See 6 Wright &• Miller, Federal Practice and Procedure: Ci\il SI 354 (1971). There has been considerable confusion as to (1) the circumstances that should trigger striking a pleading or motion or taking disciplinary action. (2) the standard of conduct expected of attorneys who sign pleadings and motions, and (3) the range of available and appropriate sanctions. See Rodes, Ripple & Mooney, Sanctions Imposable for X'iolations of the Federal Rules of Ci\il Proce- dure 64-65, Federal Judicial Center (1981). The new language is intended to reduce the reluctance of courts to impose sanctions, see Moore, Federal Practice f7.05, at 1547, by emphasizing the responsibilities of the attorney and reenforc- ing those obligations by the imposition of sanctions. TTie amended rule attempts to deal with the problem by building upon and expanding the equitable doctrine permitting the court to award expenses, includ- ing attorney's fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation. See e.g.. Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980); Hall V. Cole, 412 U.S. 1, 5 (1973). Greater attention by the district courts to pleading and motion abuses and the imposition of sanctions when appropriate, should discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses. The expanded nature of the lawyer's certification in the fifth sentence of amended Rule 1 1 recognizes that the litigation process may be abused for pur- poses other than delav. See, e.g.. Browning Debenture Holders' Committee v. DASA Corp.. 560 F.2d ICS (2d Cir. ig-J-K The words "good ground to support" the pleading in the original rule were inter- preted to have both factual and legal elements. See, e.g., Heart Disease Research Foundation v. General Motors Corp., 15 Fed. R. Serv. 2d 1517, 1519(S.D.N.Y. 1972). They have been replaced by a standard of conduct that is more focused. The new language sttesses the need for some prefiling inquin' into both the facts and the law to satisfv the affirmative dut\ imposed by the rule. The standard is one of reasonableness under the circumstances. See Kinee \. .\braham Lincoln Fed. Sav. & Loan Assn.. 365 F. Supp. 975 (E.D. Pa. 1973). This standard is more stringent than the original good-faith formula and thus it is expected that a greater range of circumstances will trigger its violation. See Nemeroff v. Abelson. 620F.2d 339(2dCir. 1980). The rule is not intended to chill an attomey's enthusiasm or creativity in pursuing factual or legal theories. TTie court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other pap)er was sub- mitted. Thus, what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausi- 29 11 vAtdmjks^ckanmtiM member of (be bar TTtp nile does not osqimE' a ^antBi cnr as ^tknnev t& (fiHcibxe piiiii mcaOons or wonk pimfiictt ini on&ir ttai) s&mw fbtst ttie s^uii^ of t&e | moiioiiL or odier (taper ia flitiiitaiitidl^ iiisti&di The proviaana- raf Bluik Z&kdl including: ippmpnate ordea after in camera [nspetOinn iiu tfte ffiffluntt. available to prrjtect a pattw cliammE: pnwtiea: or work pradiiirti piiiitBc&ism ■toreadbii ftuik Dli gonrimiifs. to' ng^ to' anwane wito' Bgro a plbaifiiig i car odieii (xaper. ^IHtmigfr tte it3ndatd is tfae «nie isr unoDepieienttai: pacttesv. w&a> ase oblieeii themselves to sgn the pleadings. tttK' noimlt ftn»; iwffltriiwrtt rfimriwjimii % tyie acGQunt a£ tfiit ^Kci^ summi^iBicra' titett att&ni aEiac impniDaea Htnnes v. Kemer -MH US. ^W- I'9T.. TTlke pmviaiQiti ia tfke omgm^' rariie ftnr sKiMine: pfrarfiti^ anfi i aid felse has befflii &lidEd: The passage lias rznsiv b&sD nrtltnmJ anfi (&{dsniia diereunder have ttfmtifrft toi confiise the issue gfeattPrngy hani^fewBifetteEiwniittrf dks' sstiani bee genei^Lv ftiangeiL Msnest^ iiii ElfeHJiiig: saS its IFiiliiiniifiiiiflrit: Some -Stiaking:' Ptnblems wtih F. Ulie' ferrntyr o^eiEnGe to' ttie tnidiifflinri of ^cas^dbuB 9ir imrfeffffwtt iimrtt«T wftiiE& is itselt stonne indication titat ai impmpeir piiiipoiBe: lun&nlieS' the gdisaifiii^ mo*- tion. or oliier paper, also has been deliSEiii SB imnBEeffiarv Suck aiaitEr maw lie stncken 'inder Rule I Zl F as well as dealt witfi; und^ tike oiune ^niasli llaisia^ (if amended Rule LL Hbe tfffet ot tile amisidbd miikr seeks- to> (fispeil :4^fj^"'^^'^"™""^^ tti^ HTtinik tbi dlU&Biii en&Ecranent wilL be fijuidiasK bn inauiang; tk^ tike nulk willi Ire a^^^l^^^^rii wften [BwpfriM involied: Hike woodi 'aamrtiBn^'' in: tiie^ captkiDm. toir eisanplk^ : dblBiEnt onent^ion in dealing wittij improper pieadinsj^. irnstusns 'sc ollkeji f TThis conEspiinds tc ttie approach in imposing ^ianctiiiins' tan discramer^ imises-. See- N^ionaL Etockev League v Weaopjlilan. Efackev Qufa» -KT^ L Si ': ' " : r • cunanrj. .^in£ tike: wnndk '^kall! impose' m tike IkBtt jraitQice- Ac. attention on tike aeef to impose sancticns fcr pleading and moBon ii;i::;%i'i. ^ je Gouife however, nettans tike rret-essH-i" fexibilit^ to deai appmpnaiEi" wutl Jiiuli»- Hons at tite mie. Dt has discr^on to 3iii>r sanctions to ttie parscuiar lads, isi tiks case, widi! wikidki it 'jikould be well .KOuainlEd: The neteiBnces in ttie thrmer text to wiitiuness as a inEniamMtB to diseipiinam actum hffii been deletEd. Jfcvve\(er in consiiainng tiiu namce and ■i^jento 'rf tte iancnons to be imposed, lim smut: siiauili£ take a:caunt nif titK itfe^ nS tte att- tomev .<^ ar pojtji a. jtrtnoJ! Qr psesumed I(in9wlkde£ when) tike plisidinE: our otitair Haper was sgned: Tbu& Sir example, when, a pact;' is. not ispiraennsiJ Ikn mnuineii. tfee absence at lead advice is si appropriate Bctor tO' be cionsideiEdl Camte cuErenriv ^ajpear to believe tiiev ma» impigse lancnons ani tinor wmti moban. See ywah American Trading Corp. j Zjde^ Corp. ~ Fib. D~> Z^W iXJD'X Y E^'^i\ .^irimntw to do m has beeni mode (c«plic:f in ondei to owarEome- tile tuaditional reluctance (St courts to inteniene imless iKoiiBstEd !T« one ot tte parties. The deduction aid pimishmentotavinltaaniaf tikeiignmgnc^uirenRaitt. encoiua^tad bw tte amendkai nili;. is patT nt tile (lomt* rcspomabilitS" tfor letninng: tte wstsnns. ^kctive ooeiation. If Ae dMe* iiaafmaxS Ei^ t&c nidk: is vmlatecL the court 'jhouM bsve the du-cietLon Hse iM^jwiiHf lagnrtiniiinH, am ^B&Kir tfee attomev. the partv the sianinff attomev repre- cai hsA, enr (am an nwi^mesentEg piiEty who agned the pieadm^ jnri tiie w^k: ant) pnQwi/dles. .ythougt Rule 1 1 has been siJent on the point. CQUits hone t&e poweir tE impose siincticins on an 2ttiQEae« peisonailv. dliuir hy iuqaa^ng easts or empicwiii^ the coijiteinpt teEhnujoE. See 7 Wright & \[iller, Fe&a£ PiactiGe md Proceciure: Gvil ;i ['^4 1 1%<51: Z.Jt Wbore,. Fetferal Practice TB L.QiZ,. i Z1(M EL S. TfeiH puvneF has been used infiin^iientf'n The amended rule iftnirllrl efimmate say dbubt is tD tfie propnetv of assessinff sanebons against the atiKcnev. Ewen tfrnngfi it i» rfW ^dtoimev wisBse signataie- violutes tfee: mnJif it mfflji be appiopiaate onder (fee ciEcunistanEes of tfee case to impose a sancticiB oa tfee dient See Browmng Debenture Holders' ConumttEe v. DASA Corp. . supra. This modification brrn^ Rule It in line wttfai praetiGe under Rule i~. which ailiQws 'jamrrtiBinft for a&uses dunng cfiHGHvery to he imposed upon tfee patt^. tiie ailWniipy, or botfa. A piict!« leeJtnig lamrhnnH '{hii^nirt p«e niiriirf- 10 tjii* cQurt and the o&nding piscty prompriv i.ipon discovenng a basis libr doing so. The time when! sanctjons acE to be imposed rests on the discretion of the trial judge. Eiowever., it is anticipated that in the case of pleadings the sanctions issue under Rule 1 1 nor- umJIv wdl be detKnnined at tfae end of the litigation, and in the case of motions at tfee tune when the motion is decided or sfaordv thereatter. The proceduie aimi- WMS^ must comport with due proces.'i cequuements. The particular format to be ftlllbwed should depend on tfae arcumstances of the sihiabon and the sevento of tfee 'jBnrtmai under consideratiun. [n manv situations tfae judge's particip;riiQn. in t&e: pDQceeifings prowides turn with, tiill jmowled^ of tfae oeievait ^t5 and Uaii^ ttfutfrgr inqmrnt will be uecesiiacv . Tq assme tfut rhf e&aencies achieved thinugh more efective Qperation of the pleading cegmen will not be ofeet by tfae cost of satellite liti^tion over the imposition 'j£ sanctions, tfie court must IB tte e.Nlpnt possible limit tfee scope of saiTction proceeding to tfee record. Thus, discoven- should be conducted only hy lE»»e of tfee court amf tfeen onlv in e.-straotdinarv circumstances. .^Jtfeoudi the encompassing reference to 'other papers ' m New Rule 111 liter- JSi^ iiTrlWfti"! &icQwerv papers, tfae eertilication requirement in tfeat context is aEmecoed by proposed new 9iaik 23tg|i E)4BGi!)veiiy motiQns. hawesnen^ &Ui vaidkiiii tfee ambit of Rait M. JO. DdisamaimdObfpciaam — Wbemaad Ham VaeasateA — b« FkaAK or Rioliaa — I^ioliaB fiv hmkjm t* «h tfae ('a)i HIhb AcsorilBd. A defendant shialL serve his- answeir widiuii 2X1 daws aiier tfae service of tte soHaiiHfiiis and complaint upon him. e"«Eept wbea senviEe is TnaiAf^ limrfpr BSiiife -fi el acidl ai (fijfenfrrtf tiinp- ig, pEesEiibeii in riip- acder of court onder the sJatnte of tfae United States or in the statute or rule of court of tfee state. A pacfei served wiifii a pleading 'dtrfing ai eHossr-claim a^aiostt bism siiail serve art answer tiieijetE witfani Zl) daws after the sen'ice upon him. The plaintiff 31 Rule 1 2 Federal Rules of Civil Procedure shall serve his reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The United States or an officer or agency thereof shall serve an answer to the complaint or to a cross-claim, or a reply to a counterclaim, within 60 days after the service upon the United States attorney of the pleading in which the claim is asserted. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within 10 days after the service of the more definite statement. As amended Jan. 21, 196?, eff. July 1, 1963. (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insuffi- ciency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and ail parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. As amended Feb. 28, 1966, eff. July 1, 1966. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to dela)' the trial, any party may move for judg- ment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded b\' the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (d) Preliminary Hearings. The defenses specifically enumerated (l)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the 32 Federal Rules of Civil Procedure Rule 1 2 motion for judgment mentioned in subdivision (cl of this rule shall be heard and determined before trial on application of any party-, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for More Definite Statement. If a pleading to which a respon- sive pleading is permitted is so vague or ambiguous that a part)' cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The mo- tion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. As amended Dec. 27, 1946, eff. Mar. 19, 1948. (f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted b\ these rules, upon motion made by a party within 20 days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, imperti- nent, or scandalous matter. (g) Consolidation of Defenses in Motion. A parh- who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a part\' makes a motion under this rule but omits therefrom anv defense or objection then available to him which this rule permits to be raised by motion, hg^sba^ll not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on anv of the grounds there stated. As amended Feb. 28, 1966, eff. July 1, 1966. (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insuffi- ciency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made bv motion under this rule nor included in a responsive pleading or an amendment thereof permitted bv Rule I?(a) to be made as a matter of course^ (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits. (5) Whenever it appears by suggestion of the parties or othenvise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. 33 Rule 12 Federal Rules of Civil Procedure As amended Dec. 27, 1946, efF. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966. Advisory Committee Notes, 1948 Amendments .\nd 1966 Amendments 1948 amendments Subdivision (e). References in this subdivision to a bill of particulars have been deleted, and the motion provided for is confined to one for a more definite statement, to be obtained only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question. With respect to preparations for trial, the party is properly relegated to the various methods of examination and discovery provided in the rules for that purpose. . . . Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. See general discussion and cases cited in 1 Moore's Federal Practice, 1938, Cum. Supplement, J 12.07, under "Page 657"; also, Holtzoff, New Federal Procedure and the Courts, 1940, 35-41. . . . The tendency of some courts freely to grant extended bills of particulars has served to neutralize any helpful benefits derived from Rule 8, and has overlooked the intended use of the rules on depositions and discovery. The words "or to prepare for trial" — eliminated b) the proposed amendment — have sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. On the other hand, many courts have in effect read these words out of the rule. . . . 1966 AMENDMENTS Amended subdivision (h)(1)(A) eliminates [an] ambiguity and states that certain specified defenses which were available to a part\ when he made a preanswer motion, but which he omitted from the motion, are waived. The specified de- fenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process (see Rule 12(b)(2)-(5)). A part>- who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. The waiver reinforces the policy of subdivision (g) forbidding suc- cessive motions. By amended subdivision (h)(1)(B), the specified defenses, even if not waived by the operation of (A), are waived by the failure to raise them by a motion under Rule 12 or in the responsive pleading or any amendment thereof to which the party is entitled as a matter of course. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading. Since the language of the subdivisions is made clear, the part) is put on fair notice of the effect of his actions and omissions and can guard himself against unintended waiver. It is to be noted that while the defenses specified in subdivi- 34 Federal Rules of Civil Procedure Rule 1 3 sion (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a part)' indispensable under Rule 19, and failure to state a legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as the defense of lack of jurisdiction over the subject matter (see Rule 12(b)(1)), are expressly preserved against waiver by amended subdivision (h)(2) and (3). Rule 15. Counterclaim and Cross-Claim (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudi- cation the presence of third parties of whom the court cannot acquire jurisdic- tion. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing part) brought suit upon his claim by attachment or other process by v\hich the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating anv counterclaim under this Rule 13. As amended Dec. 27, 1946, eff. March 19, 1948; Jan. 21, 1963, eff. July 1, 1963. (b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing partv' not arising out of the transaction or occurrence that is the subject matter of the opposing partv's claim. (c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. (d) Counterclaim against the United States. These rules shall not be con- strued to enlarge beyond the limits now fixed by law the right to assert counter- claims or to claim credits against the United States or an officer or agency thereof. (e) Counterclaim Maturing or Acquired after Pleading. A claim which either matured or was acquired by the pleader after serving his pleading ma>', with the permission of the court, be presented as a counterclaim by supplemen- tal pleading. (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim b\ amendment. 35 Rule 13 Federal Rules of Civil Procedure (g) Cross-Claim against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occur- rence that is the subject matter either of the original action or of a counter- claim therein or relating to any propert)' that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. As amended Dec. 27, 1946, eff. Mar. 19, 1948. (h) Joinder of Additional Parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20. As amended Feb. 28, 1966, eff. July 1. 1966. (i) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. As amended Dec. 27, 1946, eff. Mar. 19, 1948. Advisory Committee Comments, 1963 Amendment When a defendant, if he desires to defend his interest in propert> , is obliged to come in and litigate in a court to whose jurisdiction he could not ordinarily be subjected, fairness suggests that he should not be required to assert counterclaims, but should rather be permitted to do so at his election. If, however, he does elect to assert a counterclaim, it seems fair to require him to assert any other which is compulsorv' within the meaning of Rule n(a). Clause (2), added by amendment to Rule n(a), carries out this idea. It will apply to various cases described in Rule 4(e), as amended, where ser\ice is effected through attachment or other process by which the court does not acquire jurisdiction to render a personal judgment against the defendant. Clause (2) will also apply to actions commenced in State courts jurisdictionally grounded on attachment or the like, and removed to the Federal courts. Rule 14. Third-Party Practice (a) When Defendant May Bring in Third Party. At an\' time after com- mencement of the action a defending party, as a third-partv' plaintiff, may cause a summons and complaint to be served upon a person not a partv' to the action who is or may be liable to him for all or part of the plaintifTs claim against him. The third-party plaintiff need not obtain leave to make the service 36 Federal Rules of Civil Procedure Rule 14 if he files the third-party complaint not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-parh defendant, shall make his defenses to the third-part>' plaintiff's claim as provided in Rule 12 and his counterclaims against the third-parh' plaintiff and cross-claims against other third-party defen- dants as provided in Rule 13. The third-parh defendant may assert against the plaintiff any defenses which the third-part>' plaintiff has to the plaintiffs claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-part} plaintiff, and the third-parh' defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-partv' defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-part}' defendant. The third-party com- plaint, if within the admiralty- and maritime jurisdiction, may be in rem against a vessel, cargo, or other properh subject to admiralty or maritime process in rem, in which case references in this rule to the summons include the warrant of arrest, and references to the third-part}' plaintiff or defendant include, where appropriate, the claimant of the property arrested. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966. (b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so. (c) Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third-part}' defendant who may be wholly or partly liable, either to the plaintiff or to the third-part}' plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third- part}' plaintiff may also demand judgment against the third-part}' defendant in favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner pro\'ided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff. Added Feb. 28, 1966, eff. July 1, 1966. 37 Rule 1 5 Federal Rules of Civil Procedure Rule 15. Amended and Supplemental Pleadings (a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsi\e pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a part)' may amend his pleading only by leave of court or by written consent of the adverse part}'; and lea\e shall be freely given when justice so requires. A partv' shall plead in response to an amended plead- ing within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whiche\er period may be the longer, unless the court otherwise orders. (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessar\' to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presenta- tion of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within tiie period provided bv h\\ for commencing the action against him, the party to be brought in by amendment (1) has received such notice ot the institution of the action that he will not be prejudiced in main- taining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identit\' of the proper parh', the action w ould have been brought against him. The delivery or mailing of process to the United States Attornev, or his designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or anv' agency or officer thereof to be brought into the action as a defendant. As amended Feb. 28, 1966, eff. July 1, 1966. 38 Federal Rules of Civil Procedure Rule 1 5 (d) Supplemental Pleadings. Upon motion of a part\' the court nia> , upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which ha\e happened since the date of the pleading sought to be supplemented. Permission may be granted e\en though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse partv plead to the supplemental pleading, it shall so order, specify- ing the time therefor. As amended Jan. 21, 1963, eff. July 1, 1963. Advisory Committee Note, 1966 Amendments Subdivision(c). Prior to the 1966 amendments. Rule 15(c) contained only what is now its first sentence. The .Advisory Committee commented upon the additions as follows: Rule 15(c) is amplified to state more clearly when an amendment of a pleading changing the party against whom a claim is asserted (including an amendment to correct a misnomer or misdescription of a defendant) shall "relate back" to the date of the original pleading. The problem has arisen most acutely in certain actions by prixate parties against officers or agencies of the United States. Thus an indi\idual denied social security benefits by the Secretary of Health, Education, and Welfare may secure review of the decision by bringing a civil action against that officer within sixty days. 42 U.S.C. S405(g) (Supp. Ill, 1962). In several recent cases the claimants instituted timely action but mistakenly named as defendant the United States, the Department of HEW, the "Federal Security Administration" (a nonexistent agency), and a Secretary who had retired from the office nineteen days before. Discovering their mistakes, the claimants moved to amend their complaints to name the proper defendant; by this time the statutory sixty-day period had expired. The motions were denied on the ground that the amend- ment "would amount to the commencement of a new proceeding and would not relate back in time so as to a\oid the statutory provision . . . that suit he brought within sixty days. ..." Cohn v. Federal Security Adm., 199 F. Supp. 884, 885 (W.D.N.Y. 1961). . . . Analysis in terms of "new proceeding" is traceable to Da\ is v. L. L. Cohen & Co., 268 U.S. 638 (1925), and Mellon v. .Arkansas Land & Lumber Co., 275 U.S. 460 (1928), but those cases antedate the adoption of the rules which import different criteria for determining when an amendment is to "relate back." As lower courts have continued to rely on the Dc2v/s and Mellon cases despite the contrary intent of the rules, clarification of Rule 15(c) is considered advisable. Relation back is intimately connected with the policy of the statute of limita- tions. The policy of the statute limiting the time for suit against the Secretary of HEW would not have been offended by allowing relation back in the situations described above. For the government was put on notice of the claim within the stated period — in the particular instances, by means of the initial delivery of process to a responsible go\ernment official (see Rule 4(d)(4) and (5)). In these circumstances, characterization of the amendment as a new proceeding is not responsive to the reality, but is merely question-begging; and to deny relation 39 Rule 1 5 Federal Rules of Civil Procedure back is to defeat unjustly the claimant's opportunit>' to prove his case. See the full discussion by Byse, Suing the "Wrong" Defendant in Judicial Review of Federal Administrative Action: Proposals for Reform, 77 Har\'. L. Rev. 40 (1963); see also 111. Civ. P. Act )i't6(4). ... In actions between private parties, the problem of relation back of amendments changing defendants has generally been better han- dled by the courts, but incorrect criteria have sometimes been applied, leading sporadically to doubtful results. . . . Rule 15(c) has been amplified to provide a general solution. . . . The relation back of amendments changing plaintiffs is not expressly treated in revised Rule 1 5(c) since the problem is generally easier. Again the chief consid- eration of policy is that of the statute of limitations, and the attitude taken in revised Rule 1 5(c) toward change of defendants extends by analogy to amend- ments changing plaintiffs. Also relevant is the amendment of Rule 17(a) (real party in interest). To avoid forfeitures of just claims, revised Rule 17(a) would provide that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed for correction of the defect in the manner there stated. Rule 16. Pretrial Conferences; Scheduling; Management (a) Pretrial Conferences; Objectives. In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as (1) expediting the disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation, and; (5) facilitating the settlement of the case. (b) Scheduling and Planning. Except in categories of actions exempted by district court rule as inappropriate, the judge, or a magistrate when authorized by district court rule, shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings; (2) to file and hear motions; and (3) to complete discovery. The scheduling order also may include (4) the date or dates for conferences before trial, a final pretrial conference, and trial; and (5) any other matters appropriate in the circumstances of the case. The order shall issue as soon as practicable but in no event more than 120 days after filing of the complaint. A schedule shall not be modified except by leave 40 Federal Rules of Civil Procedure Rule 16 of the judge or a magistrate when authorized by district court rule upon a showing of good cause. (c) Subjects to be Discussed at Pretrial Conferences. The participants at any conference under this rule may consider and take action with respect to (1) the formulation and simplification of the issues, including the elimina- tion of frivolous claims or defenses; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, stipulations regarding the authenticity of docu- ments, and advance rulings from the court on the admissibility of evidence; (4) the avoidance of unnecessary proof and of cumulative evidence; (5) the identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further confer- ences and for trial; (6) the advisability of referring matters to a magistrate or master; (7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute; (8) the form and substance of the pretrial order; (9) the disposition of pending motions; (10) the need for adopting special procedures for managing potentially diffi- cult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; and (11) such other matters as may aid in the disposition of the action. At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admis- sions regarding all matters that the participants may reasonably anticipate may be discussed. (d) Final Pretrial Conference. Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The partici- pants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties. (e) Pretrial Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subse- quent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice. (f) Sanctions. If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling 41 Rule 16 Federal Rules of Civil Procedure or pretrial conference, or if a party or party's attorney is substantially unpre- pared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or his own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing him or both to pay the reasonable expenses incurred because of an\ noncom- pliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. As amended Apr. 28, 1983, eff. Aug. 1, 1983. Advisory Committee Notes, 1983 Amendments Introduction Rule 16 has not been amended since the Federal Rules were promulgated in 1938. In many respects, the rule has been a success. For example, there is evidence that pretrial conferences may improve the quality of justice rendered in the federal courts by sharpening the preparation and presentation of cases, tend- ing to eliminate trial surprise, and improving, as well as facilitating, the settle- ment process. See 6 Wright & Miller, Federal Practice and Procedure: Civil SI 522 (1971). However, in other respects particularly with regard to case manage- ment, the rule has not always been as helpful as it might have been. Thus there has been a widespread feeling that amendment is necessan' to encourage pretrial management that meets the needs of modern litigation. Sec Report of the Na- tional Commission for the Review of Antitrust Laws and Procedures (1979). Major criticism of Rule 16 has centered on the fact that its application can result in over-regulation of some cases and under-regulation of others. In simple, run-of-the-mill cases, attorneys ha\e found pretrial requirements bur- densome. It is claimed that over-administration leads to a series of mini-trials that result in a waste of an attorney's time and needless expense to a client. Pollack, Pretrial Procedures More EffectiveK Handled, 65 F.R.D. 475 (1974). This is especially likely to be true when pretrial proceedings occur long before trial. At the other end of the spectrum, the discretionar> character of Rule 16 and its orientation toward a single conference late in the pretrial process has led to under-administration of complex or protracted cases. Without judicial guid- ance beginning shortly after institution, these cases often become mired in discovery. Four sources of criticism of pretrial have been identified. First, conferences often are seen as a mere exchange of legalistic contentions without any real analysis of the particular case. Second, the result frequently is nothing but a formal agreement on minutiae. Third, the conferences are seen as unnecessary and time-consuming in cases that will be settled before trial. Fourth, the meet- ings can be ceremonial and ritualistic, having little effect on the trial and being of minimal value, particularly when the attorneys attending the sessions arc not the ones who will try the case or lack authority to enter into binding stipulations. See generally McCargo v. Hedrick, 545 F.2d 395 (4th Cir. 1976); Pollack. Pretrial 42 Federal Rules of Civil Procedure Rule 17 Procedures More Effectively Handled, 6? F.R.D. 4~S (19~4l; Rosenberg. The Pretrial Conference and Effective Justice 45 (1964l. There also have been difficulties with the pretrial orders that issue following Rule 16 conferences. When an order is entered far in advance of trial, some issues may not be properly formulated. Counsel naturally are cautious and often try to preserve as many options as possible. If the judge who tries the case did not conduct the conference, he could find it difficult to determine exactly what was agreed to at the conference. But any insistence on a detailed order may be too burdensome, depending on the nature or posture of the case. Given the significant changes in federal civil litigation since 1938 that are not reflected in Rule 16, it has been extensively rewritten and expanded to meet the challenges of modern litigahon. Empirical studies reveal that when a trial judge intervenes personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices. Flanders, Case Management and Court Management in United States District Courts 17, Federal Judicial Center (1977). Thus, the rule mandates a pretrial scheduling order. However, although scheduling and pretrial conferences are encouraged in appropriate cases, they are not mandated. . . . I\. Parties Rule 17. Parties Plaintiff and Defendant; Capacity (a) Real Part>- in Interest. Even' action shall be prosecuted in the name of the real party in interest. .An e.xecutor, administrator, guardian, bailee, trustee of an express trust, a part)' with whom or in whose name a contract has been made for the benefit of another, or a part>' authorized by statute may sue in his own name without joining with him the part}' for whose benefit the action is brought: and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real part> in interest until a reasonable time has been allowed after objec- tion for ratification of commencement of the action by, or joinder or substitu- tion of, the real partv' in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real part>' in interest. As amended Feb. 28, 1966, eff. July 1, 1966. (b) Capacity- to Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity , to sue or be sued shall be determined by the lavs' of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity 43 Rule 17 Federal Rules of Civil Procedure to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity' by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C. SS754 and 959(a), As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949. (c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conserva- tor, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. Advisory Committee Note, 1966 Amendments [Amended Rule 17(a)] keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed. . . . The provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper part)' to sue is difficult or when an understandable mistake has been made. It does not mean, for example, that, following an airplane crash in which all aboard were killed, an action may be filed in the name of John Doe (a fictitious person), as personal representative of Richard Roe (another ficti- tious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim, and have the benefit of suspension of the limitation period. Rule 18. Joinder of Claims and Remedies (a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-parh' claim, may join, either as indepen- dent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing partv. As amended Feb. 28, 1966, eff. July 1, 1966. (b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclu- 44 Federal Rules of Ci\il Procedure Rule IS sion. the two claims may be joined in a single action; but the court shall grant relief in that action onI>' in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him. without first having obtained a judgment establishing the claim for money. Advisory Committee Note, 1966 .Amendments The liberal polic> regarding joinder of claims in the pleadings extends to cases with multiple parties. Ho\^ ever, the language used in the second sentence of Rule 18(a) — "if the requirements of Rules 19 necessarv jomder of parties;. 20 j)er- missive joinder of partiesj. and 22 interpleader are satisfied" — has led some courts to infer that the rules regulating joinder of parties are intended to carry back to Rule ISiai and to impwse some special limits on joinder of claims in multi-party cases. In particular. Rule 20i a i has been read as restricting the opera- tion of Rule ISiai in certain situations in which a number of parties have been p)ermissiv elv joined in an action. In Federal Housing .\dmr. v. Christianson. 26 F. Supp. 419 iD. Conn. 1959 1. the indorsee of two notes sued the three co- makers of one note, and sought to join in the action a count on a second note which had been made by two of the three defendants. There was no doubt about the proprietv of the joinder of the three parties defendant for a right to relief was being asserted against all three defendants which arose out of a single "transac- tion" (the first note I and a question of fact or law "common" to all three defen- dants would arise in the action. See the text of Rule 20(a). The court, however, refused to allow the joinder of the count on the second note, on the ground diat this right to relief, assumed to anse from a distinct transaction, did not involve a question common to all the defendants but only two of them. . . . If the court's view is followed, it becomes necessarv to enter at the pleading stage into speculations about the exact relation between the claim sought to be joined against fewer than all the defen(iants properly joined in the action, and the claims asserted against all the defendants. . . . TTius if it could be found in the Christianson situation that the claim on the second note arose out of the same transaction as the claim on the first or out of a transaction forming part of a "series," and that anv question of &ct or law with respect to the second note also arose with regard to the first it would be held tfiat the claim on the second note could be joined in the complaint. . . . Such pleading niceties provide a basis for delaving and wasteful maneuver. It is more compatible with the design of the mles to allow the claim to be joined in the pleading, leaving the question of possible separate trial of that claim to be later decided. . . . Rule lS(a) is now amended not only to overcome the Christianson decision and similar authority, but also to state clearly, as a comprehensive proposition, that a jjartv asserting a claim lan original claim, counterclaim, cross-claim, or third-partv claim i may join as manv claims as he has against an opposing party. . . . It is emphasized that amended Rule 1 S' a ■ deals only with pleading. As already indicated, a claim prop)erlv joined as a matter of pleading need not be proceeded with tc^ether with the other claims if fairness or convenience justifies separate treatment. . . . 45 Rule 18 Federal Rules of Civil Procedure Free joinder of claims and remedies is one of the basic purposes of unification of the admiralty and civil procedure. The amendment accordingly provides for the inclusion in the rule of maritime claims as well as those which are legal and equitable in character. Rule 19. Joinder of Persons Needed for Just Adjudication (a) Persons to Be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dis- missed from the action. (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's ab- sence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. (c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(l)-(2) hereof who are not joined, and the reasons why they are not joined. (d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. As amended Feb. 28, 1966, eff. July 1, 1966. 46 I Federal Rules of Civil Procedure Rule 19 Advisory Committee Comment, 1966 Amendments The Amended Rule New subdivision la) defines the persons whose joinder in the action is desir- able. Clause (1) stresses the desirabilitv of joining those persons in whose absence the court would be obliged to grant partial or "hollow" rather than complete relief to the parties before the court. The interests that are being furthered here are not only those of the parties, but also that of the public in avoiding repeated lawsuits on the same essential subject matter. Clause (2) (i) recognizes the importance of protecting the person whose joinder is in question against the practical prejudice to him which may arise through a disposition of the action in his absence. Clause (2) (ii) recognizes the need for considering whether a party may be left, after the adjudication, in a position where a person not joined can subject him to a double or otherwise inconsistent liability. See Reed, supra, 55 Mich. L. Rev. at 330, 338; Note, supra, 65 Har\-. L. Rev. at 1052-57; Developments in the Law, supra, 71 Harv. L. Rev. at 881-85. The subdivision (a) definition of persons to be joined is not couched in terms of the abstract nature of their interests — "joint," "united," "separable," or the like. See N.Y. Temporar>- Comm. on Courts, First Preliminary Report, supra; Developments in the Law, supra, at 880. It should be noted particulady, how- ever, that the description is not at variance with the settled authorities holding that a tortfeasor with the usual "joint-and-several" liability is merely a permissive party to an action against another with like liabilit>. See 3 Moore's Federal Practice, $2153 (2d ed. 1963); 2 Barron & Holtzoff, Federal Practice & Procedure $513.8 (Wright ed. 1961). Joinder of these tortfeasors continues to be regulated by Rule 20; compare Rule 14 on third-party practice. If a person as described in subdivision (a)(l)-(2) is amenable to service of process and his joinder would not deprive the court of jurisdiction in the sense of competence over the action, he should be joined as a party; and if he has not been joined, the court should order him to be brought into the action. If a party joined has a valid objection to the venue and chooses to assert it, he will be dismissed from the action. Subdivision (b). When a person as described in subdivision (a)(l)-(2) cannot be made a party, the court is to determine whether in equity and good con- science the action should proceed among the parties already before it, or should be dismissed. That this decision is to be made in the light of pragmatic considerations has often been acknowledged bv the courts. See Roos \. Texas Co., 23 F.2d 171 (2d Cir. 1927), cert, denied, 277 U.S. 587 (1928); Nites- Bement-Pond Co. v. Iron Moulders' Union, 254 U.S. 77, 80 (1920). The subdixision sets out four relevant considerations drawn from the experience revealed in the decided cases. The factors are to a certain extent overlapping, and the) are not intended to exclude other considerations which may be appli- cable in particular situations. The first factor brings in a consideration of what a judgment in the action would mean to the absentee. Would the absentee be adversely affected in a 47 Rule 19 Federal Rules of CiWl Procedure practical sense, and if so, would the prejudice be immediate and serious, or remote and minor? The possible collateral consequences of the judgment upon the parties already joined are also to be appraised. Would any party be exposed to a fresh achon by the absentee, and if so, how serious is the threat? See the elaborate discussion in Reed, supra; cf A. L. Smith Iron Co. v. Dickson, 141 F.2d 3 (2d Cir. 1944); Caldwell Mfg. Co. v. Unique Balance Co., 18 F.R.D. 258 (S. D.N. Y. 1955). The second factor calls attention to the measures by which prejudice may be averted or lessened. The "shaping of relief is a familiar expedient to this end. See e.g., the award of money damages in lieu of specific relief where the latter might affect an absentee adversely. Ward v. Deavers, 203 F.2d 72 (DC. Cir. 1953); Miller & Lux, Inc. v. Nickel, 141 F. Supp, 41 (N.D. Calif 1956). On the use of "protective provisions," see Roos v. Texas Co., supra; Atwood \'. Rhode Island Hosp. Trust Co., 275 Fed. 513, 519 (1st Cir. 1921), cert, denied, 257 U.S. 661 (1922); cf Stumpf v. Fidelity Gas Co., 294 F.2d 886 (9th Cir. 1961); and the general statement in National Licorice Co. v. Labor Board, 309 U.S. 350, 363 (1940). Sometimes the party is himself able to take measures to avoid prejudice. Thus a defendant faced with a prospect of a second suit by an absentee may be in a position to bring the latter into the action by defensive interpleader. See Hudson V. Newell, 172 F.2d 848, 852, mod.. 176 F.2d 546 (5th Cir. 1949); Gauss v. Kirk, F.2d 83, 86 (D.C. Cir. 1952); Abel v. Brayton Flying Service, Inc., 248 F.2d 713, 716 (5th Cir. 1957) (suggestion of possibility of counterclaim under Rule 13(h)); cf Parker Rust-Proof Co. v. Western Union Tel. Co., 105 F.2d 976 (2d Cir. 1939), cert, denied, 308 U.S. 597 (1939). So also the absentee may sometimes be able to avert prejudice to himself by voluntarily appearing in the action or intervening on an ancillary basis. See Developments in the Law. supra, 71 Har\. L. Rev. at 882; Annot., Intervention or Subsequent Joinder of Parties as Affecting jurisdiction of Federal Court Based on Diversity of Citizenship, 134 A.L.R. 335 (I94I); Johnson v. Middleton, 175 F.2d 535 '(7th Cir. 1949); Ken- tucky Nat. Gas Corp. v. Duggins, 165 F.2d 1011 (6th Cir. 1948); McComb v. McCormack, 159 F.2d 219 (5th Cir. 1947). The court should consider whether 'this, in turn, would impose undue hardship on the absentee. (For the possibility of the court's informing an absentee of the pendency of the action, see comment under subdivision (c) below. ) The third factor — whether an "adequate" judgment can be rendered in the absence of a given person — calls attention to the extent of the relief that can be accorded among the parties joined. It mashes with the other factors, especially the "shaping of relief mentioned under the second factor. Cf Kroese v. General Steel Castings Corp.. 179 F.2d 760 (3d Cir. 1949). cert, denied. 339 U.S. 983 (1950). The fourth factor, looking to the practical effects of a dismissal, indicates that the court should consider whether there is any assurance that the plaintiff, if dismissed, could sue effectively in another forum where better joinder would be possible. See Fitzgerald v. Haynes, 241 F.Zd 417, 420 (3d Cir. 1957); Fouke v. Schenewerk, 197 F.2d 234, 236 (5th Cir. 1952); cf Warf^eld v. Marks, 190 F.2d 178 (5th Cir. 1951). The subdivision uses the word "indispensable" only in a conclusory sense, that is, a person is "regarded as indispensable" when he cannot be made a party and. 48 I FedesJlUesd^CnflFmcalBR Sdk20 i^an conadoatiao ti^tebckms Awe-mentinnfri,. it k detBEDaned dsC in Ih ■jlmiftmf 2 wmld lie pideialJe Id «fcnnw* die adim, ladier [Ltju to iidlimui it A MoauM iBajr be J'il'i^ a9> a paibr 3t SBf s6agic t^dieactiao oo nimJiiiwi or am ibe cnaits iiiwiK>ii"V ((see Role Zl); andl a niwrtiiiii to iHmmwitv on fiie ^onrad tkaf a ■M'lMiiii has oof be^ jjotnedland jpstice ita||miiiita &tat tjie artiicin diBpId not psoceea ■D his j|»ig»Mf, DEQT be tnoife- a$ bfc- as ^ Cnal am liie menb (see Role IZlli) (Z)^ as -^iiMHiMtwt- c£ Rnle IZbi i ~i. as siiiieiiided)^ Honever, viioi die locmci^ pairtv s M'l'lii^ dHnmssd in ocideT IS' pcolECt ll»ii«Mw*^f agpamtf a Ibter suit bf tJie ^genf' ]|»Tin«i (jsnbdinBaa (ia)i (Z)< ( of an afaKxt penoa to de ac&m^ and die ^Mjt.ti,..ji e&cfeof anadjo&aliao i^xn faan aid odieiSy mair not be snScienlbr mealed at die [Jt^-nlit^ tfcig^ ia sdcIi a case it wodd be a|]|)ni{Eidc to delei dedaan noti] die acliaa was findief adtianced. C£ Ride 12{S} SabdkkiaB (c) paaBeis: die piedecessar sobAvkkin (ic)1 cf Ride 19. bi somt tifuutituK it fBanr be «^■^^-^tJf to advke a peisoo «{» bas oat beai jjoioed of die fiyf di^ die actioo k {n'lnlingp and in paificnlar cases dieaxiit m ik cKioetiua ■Bajr ibeif coover dik inlbimatian t^' t^tytipg a Iptftpr tm nriiPT ■ Juiiml imtire fin die: Rule 20. Peiinisa*Te Joinder of Parties i»f PenBHsne (tMidei. AQ peoooii uii±> juun: riii one action as BJaiiriife if ifaev assert any nght to lelief iomdr, seveoDy, or in die alfiemative in re^Kct of or anang out of the same tonsaction, occnnence, or series or faansactioas or uixuncMces and tf^anr qoestian of bw or factcxMnmoa toaD diesepeisons wiD arise in the action. AD txasuns land an^ vessel, catgo or c^e<- rrr'^nertf safajject to aifamalfy process in lem) mar be joined in one ac-z ' i: :-:r:i- dmls if tlieie is assofed against dieni ioin%, sevoaDf, or in tr t t r anf n^t to relief in respect oS or arinng ont ctf die same tiaiL5.i . fence, or series of transactions or mxiniimrf^t and if an^ qoes' fart mmmiMi in all A fciiiliiills, mil aiJiE in the adiow. A pia:- dant need not be infierested in obtaining or defendii^ s^pDs~ demanded. Jndlpnent mar be given lor one ormore of the plair ~ . to llieir respective nglds to lebeC. and against one or more de^ri^.- ^. . :z ing to Ifaeir respective Hahilities^ As amended! Feb 28. !%6, eE jok I, 1966l ib) Sepaate Trials. The coort wav make socfa ordos as wiD prevent a paify faom being embanassed, delayed, or put to p^im^w** by die indnrion of a pai^ a^iinst wiiam he assob no (Jaim and who asserb no claim against him, and now order ^t^umtir' fiiak or make other orders to prevent ddb^ or preindice. 49 Rule 2 1 Federal Rules of Civil Procedure Rule 21. Misjoinder and Nonjoinder of Parties Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any part\ or of its own initiative at any stage of the action and on such terms as are just. Any claim against a part)' ma>' be se\ered and proceeded with separateK . Rule 22. Interpleader ( 1 ) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liabilit)'. It is not ground for objechon to the joinder that the claims of the several claimants or the titles on which their claims depend do not ha\e a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff a\ers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liabilit>- may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the rejoinder of parties permitted in Rule 20. (2) The remedy herein provided is in addition to and in no way sujjersedes or limits the remedy provided by Title 28. U.S.C. SSI 335, 139", and 2361. Actions under those provisions shall be conducted in accordance with these rules. As amended Dec. 29, 1948. eff. Oct. 20. 1949. Rule 23. Class Actions (a) Prerequisites to a Class .Action. One or more members of a class may sue or be sued as representati\ e parties on behalf of all only if ( 1 ) the class is so numerous that joinder of all members is impracticable. (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representa- dve parties are t>pical of the claims or defenses of the class, and (4) the representahve parties will fairly and adequately protect the interests of the class. (b) Class Actions Maintainable. .\n action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: ( 1 1 the prosecution of separate actions by or against indiv idual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to indi\ iduais mem- bers of the class which would establish incompatible standards of conduct for the party opfwsing the class, or (B) adjudicahons with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other mem- 50 FcdaJEaksafChilPiDcednBe Rnk 23 beis not parties to the adjjndcaiioas or sufasfantialhr inqnir or impok ffadr abilitr to proiEct their iufaaest or t2» die paitr opposing the das has acted or lefosed to act on grounds geneialhr ^iplicable to the dass, tfaereh^ making appiupiMfe final injjnncfive idief or cuiiespondii^ dedaratoiT idief with lespect to the cfass as a whole; or (3) the court finds that fhe qoestioas of law or fact coannoD to the membes of the dass predominale ckct any f|uestions afevting oolv individiial memben, and that a dass action is snpeiiar to other a^aihbk metfaodb &>r the hii and fflW-ifTit adfndic^ion of the cuutiutogr- The matteis peitineat to die findings indode t AV the interest of membas of die dass in individualK contmlKi^ the piosecfitioD or defense of y^matf actions; (B) the eslent and natme of any bt^^tion conceniing the cooCtokxet afaeady commenced bf or against nien>- beis of the dass; iC) the desiiAibti or undesiiabibt^- of coocentiating the btigifion of the daims in the particular fixum; ^D) the difficulties bl^eiy to be encountered in the management of a dass action. c IVtPTiTimatirMi by Order \M*ether Qass .Action to Be Nlajntained: No- tice: lud^nent; Adians Condncted Partiafly as Qass Actians. I ^^ won a^ pta (1) or (b) l2l, wiieiher or not favorable to die dass. sbaSl indude and describe those vbom the court finds to be members of the dass. The jjnd^nent in an action maintained as a dass action under subdivision Ijb) (3), whedier or not {xmaiAc to the dass, sfaaD indude and spedfir or describe dwse to whom the notice provided in subdivision (c); (2): was directol, and who hav^ not requested esdusion, and whom die court finds to be members of die dass. (4) When appnjpiiah; (A) an action may be brought or maintained as a dass action with respect to particular issues, or (B) a dass may be divided into subclasses and each subdass treated as a dass, and die pnniaons of thb rule sfaaD tfaen be construed and applied acconhngly. (d) Oidas m CondiKt of .Actiaas. In die conduct of actions to which this rule sqiplies, the court oiay make appropriate orders: ^ 1> determining the couoe of proceedings or presciibtng measures to prevent undue repetition or comfJi- 51 Rule 23 Federal Rules of Civil Procedure cation in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or de- fenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on interveners; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent per- sons, and that the action proceed accordingly; (5) dealing with similar procedu- ral matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time. (e) Dismissal or Compromise. A class action shall not be dismissed or com- promised without the approval of the court, and notice of the proposed dismis- sal or compromise shall be given to all members of the class in such manner as the court directs. As amended Feb. 28, 1966, eff. July 1, 1966. Advisory Committee Note, 1966 Amendments The amended rule describes in more practical terms the occasions for maintaining class actions; provides that all class actions maintained to the end as such will result in judgments including those whom the court finds to be members of the class, whether or not the judgment is favorable to the class; and refers to the measures which can be taken to assure the fair conduct of these actions. . . . Subdivision (b)(1). The difficulties which would be likely to arise if resort were had to separate actions by or against the individual members of the class here furnish the reasons for, and the principal key to, the propriet> and value of utilizing the class-action device. The considerations stated under clauses (A) and (B) are comparable to certain of the elements which define the persons whose joinder in an action is desirable as stated in Rule 19(a), as amended. See amended Rule 19(a) (2) (i) and (ii), and the Advisory Committee's Note thereto; Hazard, Indispensable Partv: The Historical Origin of a Procedural Phantom, 61 Colum. L. Rev. 1254, 1259-60 (1961); cf 3 Moore, supra, 123.08. at 3435. Clause (A): One person may ha\e rights against, or be under duties toward, numerous persons constituting a class, and be so positioned that conflicting or var>ing adjudications in lawsuits with individual members of the class might estab- lish incompatible standards to govern his conduct. The class action device can be used effectively to obviate the actual or virtual dilemma which would thus confront the party opposing the class. The matter has been stated thus: "The felt necessity for a class action is greatest when the courts are called upon to order or sanction the alteration of the status quo in circumstances such that a large number of persons are in a position to call on a single fwrson to alter the status quo. or to complain if it is altered, and the possibilit>' exists that [the] actor might be called upon to act in 52 Federal Rules of Civil Procedure Rule 23 inconsistent ways." Louisell & Hazard, Pleading and Procedure: State and Federal 719 (1962); see Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366-67 (1921). To illustrate: Separate actions by individuals against a municipality to declare a bond issue invalid or condition or limit it, to prevent or limit the making of a particular appropriation or to compel or invalidate an assessment, might create a risk of inconsistent or varying determinations. In the same way, individual litiga- tions of the rights and duties of riparian owners, or of landowners' rights and duties respecting a claimed nuisance, could create a possibility of incompatible adjudica- tions. Actions by or against a class provide a ready and fair means of achieving unitary adjudication. See Maricopa County Mun. Water Con. Dist. v. Looney, 219 F'2d 529(9thCir. 1955); Rank v. Krug, 142 F. Supp. 1, 154-59 (S.D. Calif. 1956), on app.. State of California v. Rank, 293 F.2d 340, 348 (9th Cir. 1961); Cart v. Cole, 263 F.2d 244 (2d Cir. 1959), cert, denied, 359 U.S. 978 (1959); of. Martinez v. Maverick Cw. Water Con. & Imp. Dist., 219 F.2d 666 (5th Cir. 1955); 3 Moore, supra, 1123.11(2], at 3458-59. Clause (B): This clause takes in situations where the judgment in a nonclass action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter. The vice of an individual action would lie in the fact that the other members of the class, thus practically concluded, would have had no representation in the lawsuit. In an action by policy holders against a fraternal benefit association attacking a financial reorganization of the society, it would hardly have been practical, if indeed it would have been possible, to confine the effects of a validation of the reorganiza- tion to the individual plaintiffs. Consequently a class action was called for with adequate representation of all members of the class. See Supreme Tribe of Ben- Hur V. Cauble, 255 U.S. 356 (1921); Waybright v. Columbian Mut. Life Ins. Co., 30 F. Supp. 885 (W.D. Tenn. 1939); cf Smith v. Swormstedt, 16 How. (57 U.S.) 288 (1853). For much the same reason actions by shareholders to compel the declaration of a dividend, the proper recognition and handling of redemption or pre-emption rights, or the like (or actions by the corporation for corresponding declarations of rights), should ordinarily be conducted as class actions, although the matter has been much obscured by the insistence that each shareholder has an individual claim. See Knapp v. Bankers Securities Corp., 17 F.R.D. 245 (E.D. Pa. 1954), affd, 230 F.2d 717 (3d Cir. 1956); Giesecke v. Denver Tramway Corp., 81 F. Supp. 957 (D. Del. 1949); Zahn v. Transamerica Corp., 162 F.2d 36 (3d Cir. 1947); Speed v. Transamerica Corp., 100 F. Supp. 461 (D. Del. 1951); Sobel v. Whittier Corp., 95 F. Supp. 643 (ED. Mich. 1951), app. dism.. 195 F.2d 361 (6th Cir. 1952); Goldberg v. Whittier Corp., Ill F. Supp. 382 (ED. Mich. 1953); Dann v. Studebaker-Packard Corp., 288 F.2d 201 (6th Cir. 1961); Edgerton v. Armour & Co., 94 F. Supp. 549 (S.D. Calif 1950); Ames v. Mengel Co., 190 F.2d 344 (2d Cir. 1951). (These share- holders' actions are to be distinguished from derivative actions by shareholders dealt with in new Rule 23.1). The same reasoning applies from an action which charges a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of security holders or other beneficiaries, and which requires an accounting or like measures to restore the subject of the trust. See Boesenberg v. Chicago T. & T. Co., 128 F.2d 245 (7th Cir. 1942); Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261 (8th Cir. 1944); 53 Rule 23 Federal Rules of Civil Procedure Redmond v. Commerce Trust Co., 144 F.2d 140 (8th Cir. 1944), cert, denied, IV> U.S. 776 (1944); cf. York v. Guaranty Trust Co.. 143 F.2d 503 (2d Cir. 1944), re\d on grounds not here relevant, 326 U.S. 99 (1945). In various situations an adjudication as to one or more members of the class will necessarily or probably have an adverse practical effect on the interests of other members who should therefore be represented in the lawsuit. This is plainly the case when claims are made by numerous persons against a fund insufficient to satisfy all claims. A class action by or against representative members to settle the validity of the claims as a whole, or in groups, followed by separate proof of the amount of each valid claim and proportionate distribution of the fund, meets the problem. Cf Dickinson v. Burnham, 197 F.2d 973 (2d Cir. 1952), cerf. denied, 344 U.S. 875 (1952); 3 Moore, supra, at 1123.09. The same reasoning applies to an action by a creditor to set aside a fraudulent conveyance by the debtor and to appropriate the property to his claim, when the debtor's assets are insufficient to pay all creditors' claims. See Heffernan v. Bennett & Armour, 1 10 Cal. App. 2d 564, 243 P. 2d 846 (1952); cf City & Council of San Francisco v. Market Street Ry., 95 Cal. App. 2d 648, 213 P.2d 780 (1950). Similar problems, however, can arise in the absence of a fund either present or potential. A negative or mandatory injunc- tion secured by one of a numerous class may disable the opposing party from performing claimed duties toward the other members of the class or materially affect his ability to do so. An adjudication as to movie "clearances and runs" nominally affecting only one exhibitor would often have practical effects on all the exhibitors in the same territorial area. Cf United States v. Paramount Pictures, Inc., 66 F. Supp. 323, 341-46 (S.D.N. Y. 1946); U.S. 131, 144-48(1948). Assum- ing a sufficiently numerous class of exhibitors, a class action would be advisable. (Here representation of subclasses of exhibitors could become necessary; see subdi- vision (c)(3)(B).) Subdivision (b)(2). This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate. Delcaratory relief "corresponds" to injunctive relief when as a practical matter it affords injunctive relief or serves as a basis for later injunctive relief The subdivi- sion does not extend to cases in which the appropriate final relief relates exclu- sively or predominantly to money damages. Action or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class. Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. See Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert, denied, 377 U.S. 972 (1964); Brunson v. Board of Trustees of School District No. 1, Clarendon Cty., S. C, 311 F.2d 107 (4th Cir. 1962), cert, denied, 373 U.S. 933 (1963); Green v. School Bd. of Roanoke, Va., 304 F.2d 118 (4th Cir. 1962); Orleans Parish School Bd. v. Bush, 242 F.2d 156 (5th Cir. 1957), cert, denied, 354 U.S. 921 (1957); Mannings v. Board of Public Inst, of Hillsborough Count), Fla., 277 F.2d 370 (5th Cir. I960); Northcross v. Board of Ed. of Cit\ of Memphis, 302 54 Federal Rules of Civil Procedure Rule 23 F.2d 818 (6th Cir. 1962), cert, denied, 370 U.S. 944 (1962); Frasier v. Board of Trustees of Univ. of N. C, 134 F. Supp. 589 (M.D.N. C. 1955, 3-judge court), affd, 350 U.S. 979 (1956). Subdivision (b) (2) is not limited to civil-rights cases. Thus an action looking to specific or declarator)' relief could be brought by a numerous class of purchasers, say retailers of a given description, against a seller alleged to have undertaken to sell to that class at prices higher than those set for other purchasers, say retailers of another description, when the applicable law- forbids such a pricing differential. So also a patentee of a machine, charged with selling or licensing the machine on condition that purchasers or licensees also purchase or obtain licenses to use an ancillary unpatented machine, could be sued on a class basis by a numerous group of purchasers or licensees, or by a numerous group of competing sellers or licensors of the unpatented machine, to test the legalitv' of the "tving" condition. Subdivision (b)(3). In the situations to which this subdivision relates, class- action treatment is not as clearly called for as m those described above, but it may nevertheless be convenient and desirable depending upon the particular facts. Subdivision (bX3) encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformit>' of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Cf Chafee, supra, at 201. The court is required to find, as a condition of holding that a class action may be maintained under this subdivision, that the questions common to the class predominate over the questions affecting indi\idual members. It is only where this predominance exists that economies can be achieved by means of the class- action device. In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liabilit> is found, for separate determination of the damages suffered by individuals within the class. On the other hand, al- though having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds of degrees of reliance by the persons to whom they were addressed. See Oppenheimer v. F. J. Young & Co., Inc., 144 F.2d 387 (2d Cir. 1944); Miller v. National City Bank of N. Y., 166 F.2d 723 (2d Cir. 1948); and for like problems in other contexts, see Hughes v. Encyclopaedia Britannica, 199 F.2d 295 (7th Cir. 1952); Sturgeon v. Great Lakes Steel Corp., 143 F.2d 819 (6th Cir. 1944). A "mass accident" resulting in injuries to numerous persons is ordinarily not appro- priate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways. In these circumstances an action con- ducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried. See Pennsylvania R. R. v. United States, 1 1 1 F. Supp. 80 (D.N.J. 1953); cf Weinstein, supra, 9 Buffalo L. Rev. at 469. Private damage claims by numerous individuals arising out of concerted antitrust violations may or may not involve predominating common questions. See Union Carbide & Carbon Corp. v. Nisley, 300 F.2d 561 (10th Cir. 1961), pet. cert. dtsm.. 371 U.S. 801 (1963); cf Weeks v. Bareco Oil Co., 125 F.2d 84 (7th Cir. 1941); Kainz v. Anheuser-Busch, Inc., 194 F.2d 737 (7th Cir. 1952); Hess v. Anderson. Clayton & Co., 20 F.R.D. 466 (S.D. Calif 1957). 55 Rule 23 Federal Rules of Civil Procedure That common questions predominate is not itself sufficient to justih a class action under subdivision (b)(3), for another method of handling the litigious situation may be available which has greater practical advantages. Thus one or more actions agreed to by the parties as test or model actions may be preferable to a class action; or it may prove feasible and preferable to consolidate actions. Cf Weinstein, supra, 9 Buffalo L. Rev. at 438-54. Even when a number of separate actions are proceeding simultaneously, experience shows that the burdens on the parties and the courts can sometimes be reduced by arrangements for avoiding repetitious discovery or the like. Currently the Coordinating Committee on Mul- tiple Litigation in the United States District Courts (a subcommittee of the Com- mittee on Trial Practice and Technique of the Judicial Conference of the United States) is charged with developing methods for expediting such massive litigation. To reinforce the point that the court with the aid of the parties ought to assess the relative advantages of alternative procedures for handling the total controversy, subdivision (b)(3) requires, as a further condition of maintaining the class action, that the court shall find that that procedure is "superior" to the others in the particular circumstances. Factors (A)-(D) are listed, non-exhaustively, as pertinent to the findings. The court is to consider the interests of individual members of the class in controllmg their own litigations and carrying them on as they see fit. See Weeks v. Bareco Oil Co., 125 F.2d 84, 88-90, 93-94 (7th Cir. 1941) (anti-trust action); see also Pent- land V. Dravo Corp., 152 F.2d 851 (3d Cir. 1945), and Chafee, supra, at 273-75, regarding policy of Fair Labor Standards Act of 1938. S16(b), 29 U.S.C. S216(b), prior to amendment by Portal-to-Portal Act of 1947, )i5(a). [The present provisions of 29 U.S.C. S216(b) are not intended to be affected by Rule 23, as amended.] In this connection the court should inform itself of any litigation actually pending by or against the individuals. The interests of indi\iduals in conducting separate lawsuits may be so strong as to call for denial of a class action. On the other hand, these interests may be theoretic rather than practical: the class may have a high degree of cohesion and prosecution of the action through representatives would be quite unobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable. The burden that separate suits would impose on the party opposing the class, or upon the court calendars, may also fairly be considered. (See the discussion, under subdivision (c)(2) below, of the right of members to be excluded from the class upon their request.) Also pertinent is the question of the desirabilitv' of concentrating the trial of the claims in the particular forum by means of a class achon, in contrast to allowing the claims to be litigated separately in forums to which they would ordinarily be brought. Finally, the court should consider the problems of management which are likely to arise in the conduct of a class action. Subdivision (c) (1). In order to gi\e clear definition to the action, this provi- sion requires the court to determine, as early in the proceedings as may be practicable, whether an action brought as a class action is to be so maintained. The determination depends in each case on satisfaction of the terms of subdivi- sion (a) and the relevant provisions of subdivision (b). . . . Whether the court should require notice to be given to members of the class of its intention to make a determination, or of the order embodying it, is left to the court's discretion under subdivision (d) (2). . . . 56 Federal Rules of Civil Procedure Rule 23.2 Subdivision (c) (5). . . . Although thus declaring that the judgment in a class action includes the class, as defined, subdivision (c) (3) does not disturb the recognized principle that the court conducting the action cannot predetermine the res judicata effect of the judgment; this can be tested only in a subsequent action. See Restatement, Judgments )i86, comment (h), $116 (1942). The court, however, in framing the judgment in any suit brought as a class action, must decide what its extent or coverage shall be, and if the matter is carefully con- sidered, questions of res judicata are less likely to be raised at a later time and if raised will be more satisfactorily answered. See Chafee, supra, at 294; Weinstein. supra, 9 Buffalo L. Rev. at 460. . . . Rule 23.1. Derivative Actions by Shareholders In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corpo- ration or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of v\ hich he complains or that his share or membership thereafter devolved on him bv' operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the United States which it would not othenvise have. The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs. Added Feb. 28, 1966, eff. July I, 1966. Rule 23.2. Actions Relating to Unincorporated Associations An action brought by or against the members of an unincorporated associa- tion as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 23(d), and the procedure for dismissal or compro- mise of the action shall correspond with that provided in Rule 23(e). Added Feb. 28, 1966, eff. July 1, 1966. 57 Rule 23.2 Federal Rules of Civil Procedure Advisory Committee Note on the Adoption of Rule 23.2 Although an action by or against representatives of the membership of an unin- corporated association has often been viewed as a class action, the real or main purpose of this characterization has been to give "entitv' treatment" to the associa- tion when for formal reasons it cannot sue or be sued as a jural person under Rule 17(b). See Louisell &■ Hazard, Pleading and Procedure: State and Federal 718 (1962); 3 Moore's Federal Practice 123.08 (2d ed. 1963). . . . Rule 23.2 deals separately with these actions, referring where appropriate to Rule 23. Rule 24. Intervention (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented bv existing parties. As amended Dec. 27, 1946, eff. March 19, 1948; Feb. 28, 1966, eff. July 1, 1966. (b) Permissive Intervention. Upon timely application anyone may be per- mitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer and agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudica- tion of the rights of the original parties. As amended Dec. 27, 1946, eff. Mar. 19, 1948. (c) Procedure. A person desiring to intervene shall serve a motion to inter- vene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to inter\cne. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C.S2403. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. Julv 1, 1963. 58 Federal Rules of Civil Procedure Rule 24 Advisory Committee Note, 1966 Amendments ... If an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene, and his right to do so should not depend on whether there is a fund to be distributed or otherwise disposed of Intervention of right is here seen to be a kind of counterpart to Rule 19(a)(2)(i) on joinder of persons needed for a just adjudication: where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. See Louiseli & Hazard, Pleading and Procedure: State and Federal 749-50 (1962). . . . Original Rule 24(a)(2), however, rnade it a condition of inter\ention that "the applicant is or may be bound by a judgment in the action," and this created difficulties with intervention in class actions. If the "bound" language was read literally in the sense of res judicata, it could defeat intervention in some meritori- ous cases. A member of a class to whom a judgment in a class action extended by its terms (see Rule 23(c)(3), as amended) might be entitled to show in a later action, when the judgment in the class action was claimed to operate as res judicata against him, that the "representative" in the class action had not in fact adequately represented him. If he could make this showing, the class-action judgment might be held not to bind him. See Hansberry v. Lee, 311 U.S. 32 (1940). If a class member sought to intervene in the class action proper, while it was still pending, on grounds of inadequacy of representation, he could be met with the argument: if the representation was in fact inadequate, he would not be "bound" by the judgment when it was subsequently asserted against him as res judicata, hence he was not entitled to intervene; if the representation was in fact adequate, there was no occasion or ground for intervention. See Sam Fox Pub- lishing Co. V. United States, 366 U.S. 683 (1961); cf Sutphen Estates, Inc. v. United States, 342 U.S. 19 (1951). This reasoning might be linguistically justi- fied by original Rule 24(a)(2); but it could lead to poor results. Compare the discussion in International M. & I. Corp. v. Von Clemm. 301 F.2d 857 (2d Cir. 1962); Atlantic Refinmg Co. v. Standard Oil Co., 304 F.2d 387 (D.C. Cir. 1962). A class member who claims that his "representative" does not adequately represent him, and is able to establish that proposition with sufficient probability, should not be put to the risk of having a judgment entered in the action which by its terms extends to him. and be obliged to test the validity of the judgment as applied to his interest by a later collateral attack. Rather he should, as a general rule, be entitled to intervene in the action. The amendment provides that an applicant is entitled to intervene in an action when his position is comparable to that of a person under Rule 19(a)(2)(i), as amended, unless his interest is already adequately represented in the action by existing parties. The Rule 19(a)(2)(i) criterion imports practical considerations, and the deletion of the "bound" language similarly frees the rule from undue preoccupation with strict considerations of res judicata. The representation whose adequacy comes into question under the amended rule is not confined to formal representation like that provided by a trustee for his beneficiary or a representative party in a class action for a member of the class. A party to an action may provide practical representation to the absentee seeking 59 Rule 24 Federal Rules of Ci\il Procedure intervention although no such formal relationship exists between them, and the adequacy of this practical representation will then have to be weighed. See Inter- national M. & I. Corp. V. Von Clcmm, and Atlantic Refining Co. v. Standard Oil Co., both supra; Wolpe v. Poretsky, 144 F.2d S05 (DC. Cir 1944), cert. denied, 323 U.S. 777 (1944); cf Ford Motor Co. v. Bisanz Bros., 249 F.2d 22 (8th Cir. 1957); and generally, Annot., 84 A.L.R.2d 1412 (1962). An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings. Rule 25. Substitution of Parties (a) Death. (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party. As amended Jan. 21, 1963, eff. July 1, 1963. (2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties. (b) Incompetency. If a party becomes incompetent, tlie court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against his representative. (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule. (d) Public Officers; Death or Separation from Office. (I) When a public officer is a party to an action in his official capacih' and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a partv'. Pro- ceedings following the substitution shall be in tiie name of the substituted 60 Federal Rules of Civil Procedure Rule 26 party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961. V. Depositions and Discovery Rule 26. General Provisions Governing Discovery (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. Parties may obtain discovery regarding any matter, not privi- leged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, na- ture, custody, condition and location of any books, documents, or other tangi- ble things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. The frequency or extent of use of the discovery methods set forth in subdivi- sion (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulahve or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burden- some or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c). (2) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an 61 Rule 26 Federal Rules of Ci%il Procedure insurance business may be liable to satisfy' part or all of a judgment \\ hich may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. (3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indem- nitor, insurer, or agent) only upon showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discover,' of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement con- cerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement b>' the person making it and contemporaneously recorded. (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify' and a summary of the grounds for each opinion, (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a 62 Federal Rules of Civil Procedure Rule 26 witness at trial, only as provided in Rule 55(b) or upon a showing of excep- tional circumstances under which it is impracticable for the part\' seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require thatthe party seeking discovery pay the expert a reasonable fee for time spent in respond- ing to discovery under subdivisions (b)(4)(A)(ii) and ( b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to disco\ery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (c) Protective Orders. Upon motion by a parh' or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppres- sion, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only b\ order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. (e) Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement his response with 63 Rule 26 Federal Rules of Civil Procedure respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identih' of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony. (2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. (3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses. (f) Discovery Conference. At any time after commencement of an action the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes: (1) A statement of the issues as they then appear; (2) A proposed plan and schedule of discovery; (3) Any limitations proposed to be placed on discovery; (4) Any other proposed orders with respect to discovery; and (5) A statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the motion. Each party and his attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 10 days after service of the motion. Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires. Subject to the right of a party who properly moves for a discovery conference to prompt convening of the conference, the court may combine the discovery conference with a pretrial conference authorized by Rule 16. (g) Signing of Discovery Requests, Responses, and Objections. Every re- quest for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individ- ual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, informa- 64 Federal Rules of Civil Procedure Rule 26 tion, and belief formed after a reasonable inquiry it is: (I) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expen- sive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litiga- tion. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection and a party shall not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certifica- tion, the part)' on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a rea- sonable attorney's fee. As amended Dec. 27, 1946, eff. March 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. Julv 1, 1966; March 30, 1970, eff. July 1, 1970; Apr. 29, 1980, eff Aug. 1, 1980; April 28, 1983, eff Aug. 1, 1983. Advisory Committee Note, 1970, 1980, and 1983 Amendments 1970 amendments Subdivision (b) — Scope of Discovery. This subdivision is recast to cover the scope of discovery generally. It regulates the discovery obtainable through any of the discovery devices listed in Rule 26(a). All provisions as to scope of discovery are subject to the initial qualification that the court may limit discovery in accordance with these rules. Rule 26(c) (transferred from 30(b)) confers broad powers on the courts to regulate or prevent discovery even though the materials sought are within the scope of 26(b), and these powers have always been freely exercised. For example, a parh 's income tax return is generally held not privileged, 2A Barron & Holtzoff, Federal Practice and Procedure, \651.2 (Wright ed. 1961), and yet courts have recognized that interests in privacy may call for a measure of extra protection. E.g., Wiesenberger V. W. E. Hutton &Co., 35 F.R.D. 556(S.D.N.Y. 1964). Similarly, the courts have in appropriate circumstances protected materials that are primarily of an impeaching character. These two types of materials merely illustrate the many situations, not capable of governance by precise rule, in which courts must exercise judgment. The new subsections in Rule 26(b) do not change existing law with resfject to such situations. . . . Subdivision (b)(2) — insurance Policies. Both the cases and commentators are sharply in conflict on the question whether defendant's liability insurance 65 Rule 26 Federal Rules of Civil Procedure coverage is subject to discovery in the usual situation when the insurance coverage is not itself admissible and does not bear on another issue in the case . . . The amendment resolves this issue in favor of disclosure. Most of the decisions denying discovery, some explicitly, reason from the text of Rule 26(b) that it permits discovery only of matters which will be admissible in evidence or appear reasonably calculated to lead to such evidence; they a\oid considerations of pol- icy, regarding them as foreclosed. Some note also that facts about a defendant's financial status are not discoverable as such, prior to judgment with execution unsatisfied, and fear that, if courts hold insurance coverage discoverable, they must extend the principle to other aspects of the defendant's financial status. The cases favoring disclosure rely heavily on the practical significance of insurance in the decisions lawyers make about settlement and trial preparation. In Clauss v. Danker, 264 F. Supp. 246 (S.D.N.'i'. 1967), the court held that the rules forbid disclosure but called for an amendment to permit it. Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect. The amendment is limited to insurance coverage, which should be distin- guished from any other facts concerning defendant's financial status ( 1 ) because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4) because disclosure does not involve a significant invasion of privacy. Disclosure is required when the insurer "may be liable " on part or all of the judgment. Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a v\aiver of its claim. It is immaterial whether the liabilit\' is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment. . . . In no instance does disclosure make the facts concerning insurance coverage admissible in evidence. . . . The rules are amended by eliminating the general requirement of "good cause" from Rule 34 but retaining a requirement of a special showing for trial preparation materials in this subdivision. The required showing is expressed, not in terms of "good cause" whose generality' has tended to encourage confusion and controversy, but in terms of the elements of the special showing to be made: substantial need of the materials in the preparation of the case and inability without undue hardship to obtain the substantial equivalent of the materials by other means. These changes conform to the holdings of the cases, when \ iewed in light of their facts. Apart from trial preparation, the fact that the materials sought are documentary does not in and of itself require a special showing beyond relevance and absence of privilege. The protective provisions are of course available, and if the party from whom production is sought raises a special issue of privacy (as with respect to income tax returns or grand jury minutes) or points to evidence primar- ily impeaching, or can show serious burden or expense, the court will exercise its traditional power to decide whether to issue a protective order. On the other hand, the requirement of a special showing for discovery of trial preparation 66 Federal Rules of Chil Procedure Rule 26 materials reflects the \ie» that each side's iniionnal e\a]uation of its case should be piotected. that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit oi the detailed fweparatory woA of the odier side. See Field and McKusick, Maine Criil Practice 264 (1959) Xlaterials assembled in the oidinaiy course of business, or puisuant to puUic requirements unrelated to litigation, or for other nonhtigation purposes are not under the qualified immunit> jwovided b> this subdrvision. Coosnan v. .\. Duie P>-le. Inc., 320 F.2d 45 (4di Cir. l%3t cf. United States v. New York Foreign Trade Zone Operators. Inc.. 504 F.2d ~92 (2d Cir. 1%2l No change is made in the existing doctrine, noted in the Hickman case, that one partv' ma>- disctnw ndevant tacts known or available to the odier part>'. e^ien though such facts are contained in a document wiiich is not itself disco\ eraWe. . . . Subdivision ib ii 3 ) reflects the trend of the cases b> requiring a special shomng. not merely as to materials prepared b>' an attome%. but also as to materials jM-epaied in anticipation of litigation or preparation for trial b> or for a part>- or any representatix e acting on his behalf. The subdivision then goes on to protect against disclosure the mental impressions, conclusions. c^Mnions. or legal theories concenung the litigation of an attorney or odier representative oi a partv-. The Hickman c^inion drew special attention to the need for jwotecting an attomev- against discoverv- of memoranda prepared from recollection rovi$ion d the subdivision, the courts will sometimes find it necessarv to order disclosure oi a document but v»ith pxjrtions deleted. Rules 35 and 56 have been revised in order to permit discoverv- calling for ofwiions. contentioiu. and admissions relating not cmly to fact but also to the ^iplication of law to fact. Under those rules, a partv and his attomev or other representative may be required to disclose, to some extent mental impwessions. c^nions, or conclusions. But documents or parts of documents containing these matters are protected against discoverv bv- this subdivision. Even though a jxartv mav- ultimately have to disclose in resjxmse to interrt^tories or requests to admit, he is entitled to keep confidential documents containing such matters prepiared for internal use. Partr's Right to Own Statement. — .\n excepition to the requirement of fliis subdivision enables a party to secure production oi his own statement without any special showing. . . . Courts w-hich tieat a partv-"s statement as though it were that of any witness overlook the fact that the partv "s statement is, without more, admissible in evi- dence. Ordinarily, a piartv' giv^es a statement without insisting on a copv- because he does not yet havie a lawyer and does not understand the legal consequences df his actions. Thus, the statement is given at a time wlien he functions at a disadvantage. Discrejiancies betwieen his trial testimony and earlier statement may result from lapise of memory or ordinary inaccuracv- a w-ritten statement produced for the first time at trial may give such discrepancies a prominence which thev do not deserve. In appropriate cases the court may order a partv to be depxjsed before his statement is p>roduced. . . . 67 Rule 26 Federal Rules of Civil Procedure Witness' Right to Own Statement. — A second exception to the requirement of this subdivision permits a non-part>' witness to obtain a copy of his own statement without any special showing. Many, though not all, of the considerations sup- porting a party's right to obtain his statement apply also to the non-party witness. Insurance companies are increasingly recognizing that a witness is entitled to a copy of his statement and are modifying their regular practice accordingly. Subdivision (b)(4) — Trial Preparation: Experts. This is a new provision deal- ing with discovery of information (including facts and opinions) obtained by a party from an expert retained by that party in relation to litigation or obtained by the expert and not yet transmitted to the party. The subdivision deals separately with those experts whom the party expects to call as trial witnesses and with those experts who have been retained or specially employed by the party but who are not expected to be witnesses. It should be noted that the subdi\ision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness. Subsection (b)(4)(A) deals with discovery of information obtained by or through experts who will be called as witnesses at trial. . . . In cases of this character, a prohibition against discovery of information held by expert witnesses produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation. The lawyer even with the help of his own experts fre- quently cannot anticipate the particular approach his ad\ersary's expert will take or the data on which he will base his judgment on the stand. McGlothlin, Some Practical Problems in Proof of Economic, Scientific, and Technical Facts, 23 F.R.D. 467, 478 (19S8). A California study of discovery and pretrial in condemnation cases notes that the only substitute for discovery of experts' valuation materials is "lengthy — and often fruitless — cross-examination during trial," and recommends pretrial exchange of such material. Calif Law Rev. Comm'n, Discovery in Eminent Domain Proceedings 707-710 (Jan. 1963). Similarly, effective rebuttal requires advance knowledge of the line of testimony of the other side. If the latter is foreclosed by a rule against discovery, then the narrowing of issues and elimination of surprise which discovery normally pro- duces are frustrated. . . . Subdivision (b)(4)(A) provides for discovery of an expert who is to testify at the trial. A party can require one who intends to use the expert to state the substance of the testimony that the expert is expected to give. The court may order further discovery, and it has ample power to regulate its timing and scope and to prevent abuse. Ordinarily, the order for further discovery shall compensate the expert for his time, and may compensate the party who intends to use the expert for past expenses reasonably incurred in obtaining facts or opinions from the expert. Those provisions are likely to discourage abusive practices. Subdivision (b)(4)(B) deals with an expert who has been retained or specially employed by the part)' in anticipation of litigation or preparation for trial (thus excluding an expert who is simply a general employee of the party not specially employed on the case), but who is not expected to be called as a witness. Under its provisions, a party may discover facts known or opinions held by such an 68 Federal Rules of Civil Procedure Rule 26 expert only on a showing of exceptional circumstances under which it is impracti- cable for the part)- seeking discovert' to obtain facts or opinions on the same subject by other means. Subdivision (b)(4)(B) is concerned only with experts retained or specially con- sulted in relation to trial preparation. Thus the subdi\ision precludes discovery against experts who were mformally consulted m preparation for trial, but not retained or specially employed. As an ancillary procedure, a party may on a proper showing require the other party to name experts retained or specially employed, but not those informally consulted. . . . 1980 AMENDMENTS Subdivision (f). This subdivision is new. There has been widespread criticism of abuse of discovery. The Committee has considered a number of proposals to eliminate abuse, including a change in Rule 26(b)(1) with respect to the scope of discovers and a change in Rule 33(a) to limit the number of questions that can be asked by interrogatories to parties. The Committee believes that abuse of discovery , while verv' serious in certain cases, is not so general as to require such basic changes in the rules that govern discovery in all cases. A very recent study of discovery in selected metropolitan districts tends to support its belief. P. Connolly, E. Holleman, & M. Kuhlman, judicial Controls and the Civil Litigative Process: Discovery (Federal judicial Center, 1978). In the judgment of the Committee abuse can best be prevented by intervention by the court as soon as abuse is threatened. To this end this subdivision provides that counsel who has attempted without success to effect with opposing counsel a reasonable program or plan for discovery is entitled to the assistance of the court. It is not contemplated that requests for discovery conferences will be made routinely. A relatively narrow discovery dispute should be resolved by resort to Rules 26(c) or 37(a), and if it appears that a request for a conference is in fact grounded in such a dispute, the court may refer counsel to those rules. If the court is persuaded that a request is frivolous or vexatious, it can strike it. See Rules 11 and 7(b)(2). A number of courts routinely consider discoven,' matters in preliminary pretrial conferences held shortly after the pleadings are closed. This subdivision does not interfere with such a practice. It authorizes the court to combine a discovery- conference with a pretrial conference under Rule 16 if a pretrial conference is held sufficiently early to prevent or curb abuse. 1983 AMENDMENTS Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems. Recent studies have made some attempt to determine the sources and extent of the difficulties. See Brazil, Civil Discovery: Lawyers' Views of its Effectiveness, Principal Problems and Abuses, American Bar Foun- dation (1980): Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery, Federal judicial Center (1978); Ellington, A Study of Sanctions for Discovery Abuse, Department of justice (1979); Schroeder & Frank, The Proposed Changes in the Discovery Rules, 1978 Ariz. St. L.j. 475. 69 Rule 26 Federal Rules of Civil Procedure The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." Hickman v. Taylor, 529 U.S. 495, 507 (1947). Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses. All of this results in excessively costly and hme- consuming activities that are disproportionate to the nature of the case, the amount involved, or the issues or values at stake. Given our adversary tradition and the current discovery rules, it is not surpris- ing that there are many opportunities, if not incentives, for attorneys to engage in discovery that, although authorized by the broad, permissive terms of the rules nevertheless results in delay. See Brazil, The Adversary Character of Civil Dis- covery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1259 (1978). As a result, it has been said that the rules have "not infrequendy [been) exploited to the disadvantage of justice." Herbert v. Lando, 441 U.S. 155, 179 (1979) (Pow- ell, |., concurring). These practices impose costs on an already overburdened system and impede the fundamental goal of the "just, speedy, and inexpensive determination of every action." Fed. R. Civ. P. 1. Subdivision (a); Discovery Methods. The deletion of the last sentence of Rule 26(a)(1), which provided that unless the court ordered otherwise under Rule 26(c) "the frequency of use" of the various discovery methods was not to be limited, is an attempt to address the problem of duplicative, redundant, and excessive dis- covery and to reduce it. The amendment, in conjunction with the changes in Rule 26(b)(1), is designed to encourage district judges to identih' instances of needless discovery and to limit the use of the various discovery devices accord- ingly. The question may be raised by one of the parties, typically on a motion for a protective order, or by the court on its own initiative. It is entirely appropriate to consider a limitation on the frequency of use of discovery at a discovery confer- ence under Rule 26(f) or at any other pretrial conference authorized by these rules. In considering the discovery needs of a particular case, the court should consider the factors described in Rule 26(b)(1). Subdivision (b); Discovery Scope and Limits. Rule 26(b)(1) has been amended to add a sentence to deal with the problem of over-discovery. The objective is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry. The new sentence is intended to encourage judges to be more aggressive in identifsing and discouraging discovery overuse. The grounds mentioned in the amended rule for limiting discovery reflect the existing practice of many courts in issuing protective orders under Rule 26(c). See, e.g., Carlson Cos. V. Sperry & Hutchinson Co., 374 F. Supp. 1080 (D. Minn. 1974); Dolgow v. Anderson. 53 F.R.D. 661 (E.D.N.Y. 1971); Mitchell v. American Tobacco Co., 33 F.R.D. 262 (M.D. Pa. 1963);Welt>' v. Clute, 1 F.R.D. 446 (W.D.N. Y. 1941). On the whole, however, district judges have been reluctant to limit the use of the discovery devices. See, e.g., Apco Oil Co. v. Certified Transp., Inc., 46 F.R.D. 428 (w'd. Mo. 1969). See generally 8 Wright & Miller, Federal Practice and Procedure: Civil SS2036, 2037, 2039. 2040 (1970). 70 Federal Rules of Civil Procedure Rule 26 The first element of the standard. Rule 26(b)(l)(i), is designed to minimize redundancy in discovery and encourage attorneys to be sensitive to the compara- tive costs of different methods of securing information. Subdivision (b)(l)(ii) also seeks to reduce repetitiveness and to oblige lawyers to think through their discov- ery activities in advance so that full utilization is made of each deposition, document request, or set of interrogatories. The elements of Rule 26(b)(lKiii) address the problem of discovery that is disproportionate to the individual lawsuit as measured by such matters as its nature and complexity, the importance of the issues at stake in a case seeking damages, the limitations on a financially weak litigant to withstand extensive opposition to a discovery program or to respond to discovery requests, and the significance of the substantive issues, as measured in philosophic, social, or institutional terms. Thus the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved. The court must apply the standards in an even-handed manner that will pre\ent use of discovery to wage a war of attrition or as a device to coerce a party, whether financially weak or affluent. The rule contemplates greater judicial involvement in the discovery process and thus acknowledges the reality that it cannot always operate on a self-regulating basis. See Connolly, Holleman & Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery 77, Federal Judicial Center (1978). In an appropriate case the court could restrict the number of depositions, interrogatories, or the scope of a production request. But the court must be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case. The court may act on motion, or its own initiative. It is enhrely appropriate to resort to the amended rule in conjunction with a discovery conference under Rule 26{f) or one of the other pretrial conferences authorized by the rules. Subdivision (g); Signing of Discovery Requests, Responses, and Objections. Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a respon- sible manner that is consistent with the spirit and purposes of Rules 26 through ?7. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery re- quest, a response thereto, or an objection. The term "response" includes answers to interrogatories and to requests to admit as well as responses to production requests. If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind. Rule 26(g), which parallels the amendments to Rule 11, requires an attorney or unrepresented party to sign each discovery request, response, or objec- tion. Motions relating to discovery are governed by Rule 1 1 . However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g). Although the certification duty requires the lawyer to pause and consider the 71 Rule 26 Federal Rules of Civil Procedure reasonableness of his request, response, or objection, it is not meant to discourage or restrict necessary and legitimate discovery. The rule simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection. The duty to make a "reasonable inquiry" is satisfied if the investigation under- taken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard similar to the one imposed by Rule 11. See the Advisory Committee Note to Rule 11. See also Kinee v. Abraham Lincoln Fed. Sav. & Loan Assn., 365 F. Supp. 975 (E.D. Pa. 1973). In making the inquiry, the attorney may rely on assertions by the client and on communica- tions with other counsel in the case as long as that reliance is appropriate under the circumstances. Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances. Rule 26(g) does not require the signing attorney to certify the truthfulness of the client's factual responses to a discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand. Thus, the lawyer's certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as those in Rules 30(e) and 33. Nor does the rule require a party or an attorney to disclose privileged commu- nications or work product in order to show that a discovery request, response, or objection is substantially justified. The provisions of Rule 26(c), including appro- priate orders after in camera inspection by the court, remain available to protect a party claiming privilege or work product protection. The signing requirement means that every discovery request, response, or objection should be grounded on a theory that is reasonable under the precedents or a good faith belief as to what should be the law. This standard is heavily dependent on the circumstances of each case. The certification speaks as of the time it is made. The duty to supplement discovery responses continues to be governed by Rule 26(e). Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting). Sanc- tions to deter discovery abuse would be more effective if they were diligently applied "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). See also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978). Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule's standards will significantly reduce abuse by imposing disadvantages therefor. Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers' Views of its Effective- ness, Principal Problems and Abuses, American Bar Foundation (1980); Elling- ton, A Study of Sanctions for Discovery Abuse, Department of [ustice (1979). Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 72 Federal Rules of Civil Procedure Rule '. U.S.C. S1927, and the court's inherent power. See Roadway Express. Inc. v. Piper, 447 U.S. 752 (1980): Martin v. Bell Helicopter Co.. 85 F.R.D. 654. 661-662 (D. Col. 1980); Note, Sanctions Imposed by Courts on .Attorneys Who .Abuse the Judicial Process, 44 U. Chi. L. Rev. 619 (1977). The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(gi. The nature of the sanction is a matter of judicial discretion to be exercised in light of the particular circum- stances. TTie court may take into account an> failure by the party seeking sanc- tions to invoke protection under Rule 26(ci at an early stage in the litigation. The sanctioning process must comport with due process requirements. The kind of notice and hearing required will depend on the facts of the case and the severity of the sanction being considered. To prevent the proliferation of the sanction procedure and to avoid multiple hearings, discovery in any sanction proceeding normally should be permitted only when it is clearly required by the interests of justice, in most cases the court will be aware of the circumstances and only a brief heanng should be necessary. Rule 27. Depositions before .\ction or Pending .\ppeal (a) Before .\ction. (1) Petition. \ person who desires to jjerpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the United States may file a verified petition in the United States district court in the district of the residence of any expected adverse party . The petition shall be entided in the name of the petitioner and shall show: 1, that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and his interest therein. 3, the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, 4. the names or a description of the persons he expects will be adverse parties and their addresses so far as known, and 5. the names and addresses of the persons to be examined and the substance of the testimony which he ex-pects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the penons to be examined named in the petition, for the purpose of perpetuating their testimony. As amended Dec. 29, 1948, eff. Oct. 20, 1949. (2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the {petition as an expected adverse party, together with a copy of the jjetition. stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the jjetition. .At least 20 days before the date of hearing the notice shall be served either within or without the district or state in the manner provided in Rule 4id) for service of summons: but if such service cannot with due diligence be made upon any ex-pected adverse party named in the petition, the court may make such order 73 Rule 27 Federal Rules of Ci\ il Procedure as is just for senice by publication or otherwise, and shall appoint, for persons not served in the manner pro\'ided in Rule 4(d), an attorne\' who shall repre- sent them, and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected ad\erse part)' is a minor or incompetent the provisions of Rule 17(c) apply. (3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The deposi- tions may then be taken in accordance with these rules; and the court may make orders of the character provided for by Rules 34 and 35. For the purpose of applying these rules to depositions for perpetuating testimonv , each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. As amended Dec. 27, 1946, eff. March 19, 1948. (4j Use of Deposition. If a deposition to perpetuate testimony is taken under these rules or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, it may be used in any action involving the same subject matter subsequently brought in a United States district court, in accordance with the provisions of Rule 32(a). As amended Dec. 29, 1948, eff. Oct. 20, 1949; Mar. 1, 1971, eff. Julv 1, 1971. (b) Pending Appeal. If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate the testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposi- tions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court. As amended Dec. 27. 1946, eff. Mar. 19, 1948. (c) Perpetuation by Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony. 74 Federal Rules of Ci\ il Procedure Rule 29 Rule 28. Persons before \\ hom Depositions May Be Taken (a) Within the United States. Within the United States or within a territor. or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. The term officer as used in Rules 50, 31. and 32 includes a person appointed by the court or designated bv the parties under Rule 29. ,\s amended Dec. 27, 1946, eff. Mar. 19, 1948; .Apr. 29, 1980, eff. Aug. 1, 1980. (b) In Foreign Countries. In a foreign countr}-, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law^ of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall ha\e the power by virtue of his commission to administer any necessar)- oath and take testimony, or (3) pursuant to a letter rogator\. A commission or a letter rogaton, shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatoPi- that the taking of the deposihon in any other manner is impracticable or incon\enient; and both a commission and a letter rogator}- may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogator\- may be addressed "To the Appropriate Au- thorih in [here name the country]." Evidence obtained in response to a letter rogatopt need not be excluded merely for the reason that it is not a \erbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. As amended Jan. 21, 1963, eff. July 1, 1963. (c) Disqualification for Interest. No deposition shall be taken before a person who is a relati\e or emplo\ce or attorney or counsel of any of the parties, or is a relati\e or emplo\ee of such attorney or counsel, or is financialK interested in the action. Rule 29. Stipulations Regarding Discovery Procedure Unless the court orders otherwise, the parties may by written stipulation (1) pro\ide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modifi- the procedures provided by these rules for other 75 Rule 29 Federal Rules of CiNil Procedure methods of discovery, except that stipulations extending the time provided in Rules 33, 34, and 36 for responses to disco\er\- may be made onlv with the approval of the court. As amended Mar. 30, 1970, eff. July 1, 1970. Rule 30. Depositions upon Oral Examination (a) When Depositions May Be Taken. After commencement of the action, any party may take the testimony of any person, including a party, b\ deposi- tion upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant or service made under Rule 4(e), except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b) (2) of this rule. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (b) Notice of Examination: General Requirements; Special Notice; Non- Stenographic Recording; Production of Documents and Things; DepKjsition of Organization; Deposition by Telephone. (1) A part)' desiring to take the deposition of any person upon oral examina- tion shall give reasonable notice in writing to every other partv to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify' him or the particular class or group to which he belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice. (2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the district where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the 30-day period, and (B) sets forth facts to support the statement. The plaintiffs attorney shall sign the notice, and his signature constitutes a certification by him that to the best of his knowledge, information, and belief the statement and supporting facts are true. The sanctions provided by Rule 1 1 are applicable to the certification. If a partv' shows that when he was served with notice under this subdivision (b) (2) he was unable through the exercise of diligence to obtain counsel to represent him at the taking of the deposition, the deposition mav not be used against him. 76 Federal Rules of Civil Procedure Rule 30 (3) The court may for cause shown enlarge or shorten the time for taking the deposition. (4) The parties may stipulate in writing or the court may upon motion order that the testimony at a deposition be recorded by other than stenographic means. The stipulation or order shall designate the person before whom the deposition shall be taken, the manner of recording, preserving and filing the deposition, and may include other provisions to assure that the recorded testimony will be accu- rate and trustworthy. A party may arrange to have a stenographic transcription made at his own expense. Any objections under subdivision (c), any changes made by the witness, his signature identifying the deposition as his own or the statement of the officer that is required if the v\itness does not sign, as provided in subdi\ision (e), and the certification of the officer required by subdivision (f) shall be set forth in a writing to accompany a deposition recorded by non-stenographic means. (5) The notice to a part>' deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. (6) A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which exami- nation is requested. In that event, the organization so named shall designate one or more officers, directors or managing agents, or other persons who consent to testify' on its behalf, and may set forth, for each person designated, the matters on which he will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify" as to matters known or reasonably a\ailable to the organization. This subdi\ision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone. For the purposes of this rule and Rules 28(a), 37(a)(1), 37(b)(1) and 45(d), a deposition taken by telephone is taken in the district and at the place where the deponent is to answer questions pro- pounded to him. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence. The officer before whom the deposition is to be taken shall put the witness of oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony shall be transcribed. All objections made at time of the examination to the qualifications of the 77 Rule 30 Federal Rules of Civil Procedure officer faking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any part), and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence ob- jected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may ser\e written questions in a sealed envelope on the partv' taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) Motion to Terminate or Limit Examination. At an\' time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or ma\' limit the scope and manner of the taking of the deposition as pro\ided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting part>' or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 37(a) (4) apply to the award of expenses incurred in relation to the motion. (e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposi- tion shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within 30 days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Rule 32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (f) Certification and Failing by Officer; Exhibits; Copies; Notice of Filing. (1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the court, he shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly file it w ith the 78 Federal Rules of Civil Procedure Rule 30 court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, except that if the person producing the materials desires to retain them he may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if he affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case. (2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent. (3) The party taking the deposition shall give prompt notice of its filing to all other parties. (g) Failure to Attend or to Serve Subpoena; Expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees. (2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does not attend, and if another party attends in person or by attorney because he expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney's fees. As amended Jan. 21, 1963, eff July I, 1963; Mar. 30, 1970, eff July I, 1970; Mar. 1, 1971, eff. July I, 1971; Nov. 20, 1972, and expressly approved by P.L. 93-595, eff July I, 1975; Apr. 29, 1980, eff Aug. 1, 1980. Advisory Committee Note, 1970 and 1980 Amendments 1970 amendments Subdivision (b)(4). In order to facilitate less expensive procedures, provision is made for the recording of testimony by other than stenographic means — e.g., by mechanical, electronic, or photographic means. Because these methods give rise to problems of accuracy and trustworthiness, the party taking the deposition is 79 Rule 30 Federal Rules of Civil Procedure required to apply for a court order. The order is to specif)' how the testimony is to be recorded, preserved, and filed, and it may contain whate\er additional safe- guards the court deems necessary. Subdivision (b)(5). A provision is added to enable a party, through ser\ice of notice, to require another party to produce documents or things at the taking of his deposition. This may now be done as to a nonparty deponent through use of a subpoena duces tecum as authorized by Rule 45, but some courts have held that documents may be secured from a party only under Rule 34. See 2A Barron & Hoitzoff. Federal Practice and Procedure S644. 1 n.83.2, $792 n. 16 (Wright ed. 1961). With the elimination of "good cause" from Rule 34, the reason for this restrictive doctrine has disappeared. Cf. N.Y.C.P.L.R. ;i3111. Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this rule will depend on the nature and volume of the documents or things. Both methods are made available. When the documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition, thereby causing undue burdens on others, the latter may, under Rules 26(c) or 30(d), apply for a court order that the examining party proceed via Rule 34 alone. Subdivision (b)(6). A new provision is added, whereby a party may name a corporation, partnership, association, or governmental agencv' as the deponent and designate the matters on which he requests examination, and the organiza- tion shall then name one or more of its officers, directors, or managing agents, or other persons consenting to appear and testify on its behalf with respect to matters known or reasonably available to the organization. Cf. Alberta Sup. Ct. R. 255. The organization may designate persons other than officers, directors, and man- aging agents, but only with their consent. Thus, an employee or agent who has an independent or conflicting interest in the litigation — for example, in a per- sonal injury case — can refuse to testify' on behalf of the organization. This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he may depose them. On the other hand, a court's decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this subdivision. . . . 1980 AMENDMENTS Subdivision (b)(4). It has been proposed that electronic recording of deposi- tions be authorized as a matter of course, subject to the right of a party to seek an order that a deposition be recorded by stenographic means. The Committee is not satisfied that a case has been made for a reversal of present practice. The amend- ment is made to encourage parties to agree to the use of electronic recording of depositions so that conflicting claims with respect to the potential of electronic recording for reducing costs of depositions can be appraised in the light ot greater experience. The provision that the parties may stipulate that depositions may be recorded by other than stenographic means seems implicit in Rule 29. The 80 Federal Rules of Ci\ il Procedure Rule 3 1 amendment makes it explicit. The pro\ision that the stipulation or order shall designate the person before whom the deposition is to be taken is added to encourage the naming of the recording technician as that person, eliminating the necessit)' of the presence of one whose only function is to administer the oath. See Rules 28(a) and 29. Subdivision (b)(7). Depositions by telephone are now authorized by Rule 29 upon stipulation of the parties. The amendment authorizes that method by order of the court. The final sentence is added to make it clear that when a deposition is taken by telephone it is taken in the district and at the place where the witness is to answer the questions rather than that where the questions are propounded. Rule 51. Depositions upon Written Questions (a) Serving Questions; Notice. After commencement of the action, any party^ max take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as pro\ided in Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. A party desiring to take a deposition upon written questions shall serve them upon every other part\' with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or govern- mental agency in accordance with the pro\isions of Rule 30(b)(6). Within 30 days after the notice and written questions are sened, a party may serve cross questions upon all other parties. Within 10 days after being served with cross questions, a party may serve redirect questions upon all other parties. Within 10 days after being served with redirect questions, a parts' may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time. (b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered b\ the party taking the deposi- tion to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 30(c), (e), and (f ), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him. (c) Notice of Filing. When the deposition is filed the party taking it shall promptlv give notice thereof to all other parties. As amended March 30, 1970, eff. Julv 1, 1970. 81 Rule 32 Federal Rules of Ci\il Procedure Rule 52. Use of Depositions in Court Proceedings (a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutor)' proceeding, any part or ail of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party vsho was present or represented at the taking of the deposition or who had reasonable notice thereof in accor- dance with an} of the following provisions: (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Federal Rules of E\idence. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testif\' on behalf of a public or pri\ate corpora- tion, partnership or association or go\ernmental agency which is a party may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds; (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition: or (C) that the witness is unable to attend or testif\' because of age, illness, infirmih, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence b\' a parh', an adverse part\ may require him to introduce any other part which ought in fairness to be con- sidered with the part introduced, and any party may introduce any other parts. Substitution of parties pursuant to Rule 25 does not affect the right to use depositions pre\ iousK' taken; and when an action has been brought in any court of the United States or of any State and another action in\olving the same subject matter is afterward brought between the same parties or their represen- tatives or successors in interest, all depositions lawfully taken and duK' filed in the former action may be used in the latter as if originally taken therefor. A deposition previousK taken may also be used as permitted b\ the Federal Rules of Evidence. (b) Objections to Admissibility. Subject to the pro\ isions of Rule 28(b) and subdivision (d)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. 82 Federal Rules of Ci\il Procedure Rule 33 (c) Effect of Taking or Using Depositions. Abrogated by amendment Nov. 20, 1972, and expressly appro\ed b\' P.L. 93-595, eff. July 1. 1975. The amending order did not reletter the subdivisions that follow. (d) Effect of Errors and Irregularities in Depositions. (1) As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. (2) As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is wai\ed unless made before the taking of the deposition begins or as soon thereafter as the dis- qualification becomes known or could be discovered with reasonable diligence. (3) As to Taking of Deposition. (A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposihon, unless the ground of the objection is one which might have been obviated or remo\ed if presented at that time. (B) Errors and irregularities occurring at the oral examination in the man- ner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be ob\ iated, removed, or cured if promptK presented, are waived unless seasonable objection thereto is made at the taking of the deposition. (C) Objections to the form of written questions submitted under Rule 3 1 are waived unless served in writing upon the party propounding them v\ ithin the time allowed for serving the succeeding cross or other questions and within 5 days after service of the last questions authorized. (4) As to Completion and Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under Rules 30 and 31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained. .-^s amended Mar. 30, 1970, eff. Julv 1, 1970; Nov. 20, 1972, and expressly approved by P.L. 93-595, eff. Julv 1. 19"5; Apr. 29, 1980, eff Aug. 1, 1980. Rule 33. Interrogatories to Parties (a) Availability; Procedures for Use. Any partv' may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental 83 Rule 33 federal Rules of Civil Procedure agency, by any officer or agent, who shall furnish sucii information as is avail- able to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 50 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The party submitting the interrogatories may move for an order under Rule 57(a) with respect to any objection to or other failure to answer an interrogatory. (b) Scope; Use at Trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may be used to the extent permitted by the rules of evidence. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court ma\' order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time. (c) Option to Produce Business Records. Where the answer to an interroga- tory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspec- tion of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the parts' serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reason- able opportunit) to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer mav be ascertained. As amended Dec. 27, 1946, cff. Mar. 19, 1948; Mar. 50, 1970, eft. July 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980. Advisory Commhtke Note, 1970 and 1980 .Amendments 1970 amendments . . . The amendment improves the procednre of Rule 53 in the tollovving respects: 84 Federal Rules of Civil Procedure Rule 33 (1) The time allowed for response is increased to 30 days and this time period applies to both answers and objections, but a defendant need not respond in less than 45 days after senice of the summons and complaint upon him. As is true under existing law, the responding party who believes that some parts or all of the interrogatories are objectionable may choose to seek a protective order under new Rule 26(c) or may ser\e objections under this rule. Unless he applies for a protective order, he is required to ser\e answers or objections in resf>onse to the interrogatories, subject to the sanctions provided in Rule 37(d). Answers and objections are served together, so that a response to each interrogatory is encour- aged, and any failure to respond is easily noted. (2) In view of the enlarged time permitted for response, it is no longer neces- sary to require lea\e of court for ser\ice of interrogatories. The purpose of this requirement — that defendant have time to obtain counsel before a response must be made — is adequately fulfilled by the requirement that interrogatories be served upon a party with or after service of the summons and complaint upon him. . . . Subdivision (b). There are numerous and conflicting decisions on the queshon whether and to what extent interrogatories are limited to matters "of fact," or may elicit opinions, contentions, and legal conclusions. . . . Rule 33 is amended to provide that an interrogator* is not objectionable merely because it calls for an opinion or contention that relates to fact or the applicahon of law to fact. Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit "factual" opinions. As to requests for opinions or contentions that call for the application of law to fact, they can be most useful in narrowing and sharpening the issues, which is a major purpose of discovery. See Diversified Products Corp. V. Sports Center Co.. 42 F.R.D. 3 (D. Md' 1967); Moore, supra; Field & McKusick, Maine Civil Practice S26. 18 (1959). On the other hand, under the new language interrogatories may not extend to issues of "pure law," i.e., legal issues unrelated to the facts of the case. Cf United States \. Maryland & \'a. Milk Producers -Assn., Inc., 22 F.R.D. 300 (D.D.C. 1958). Since interrogatories in\olving mixed questions of law and fact may create disputes between the parties which are best resolved after much or all of the other discovery has been completed, the court is expressly authorized to defer an answer. Likewise, the court may delay determination until pretrial conference, if it believes that the dispute is best resoKed in the presence of the judge. . . . Subdivision (c). This is a new subdivision, adapted from Calif CodeCi\. Proc. )i2030(c), relating especially to interrogatories which require a party to engage in burdensome or expensi\e research into his own business records in order to give an answer. The subdivision gives the party an option to make the records a\ailable and place the burden of research on the party who seeks the information. "This provi- sion, without undermining the liberal scope of interrogatory disco\er\ . places the burden of discovery upon its potential benefitee. " Louisell. Modern California Discovery, 1 24- 125(1 963), and alleviates a problem which in the past has troubled Federal courts. See Speck, The Use of Discoven in United States District Courts, 60 Yale L.J. 1132, 1142-1144(1951). The interrogating party is protected against abusive use of this provision through the requirement that the burden of ascertain- 85 Rule 33 Federal Rules of Civil Procedure ing the answer be substantially the same for both sides. A respondent may not impose on an interrogating party a mass of records as to which research is feasible only for one familiar with the records. At the same time, the respondent unable to invoke this subdivision does not on that account lose the protection available to him under new Rule 26(c) against oppressive or unduly burdensome or expensive interrogatories. And even when the respondent successfully invokes the subdivi- sion, the court is not deprived of its usual power, in appropriate cases, to require that the interrogating party reimburse the respondent for the expense of assembling his records and making them intelligible. 1980 AMENDMENTS Subdivision (c). The Committee is advised that parties upon whom interroga- tories are ser\ed have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available, justifying the response by the option provided by this subdivision. Such practices are an abuse of the option. A party who is permitted by the terms of this subdivision to offer records for inspection in lieu of answering an interrogatory should offer them in a manner that permits the same direct and economical access that is available to the party. If the information sought exists in the form of compilations, abstracts or summaries then available to the responding party, those should be made available to the interrogating party. The final sentence is added to make it clear that a responding party has the duty to specify, by categorv' and location, the records from which answers to interrogatories can be derived. Rule 34. Production of Documents and Things and Entry upon Land for Inspection and Other Purposes (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon desig- nated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b). (b) Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall 86 Federal Rules of Civil Procedure Rule 35 set forth the items to be inspected either by individual item or by category, and describe each item and categor\' with reasonable particularit>-. The request shall specifv' a reasonable time, place, and manner of making the inspection and performing the related acts. The part\ upon whom the request is served shall ser\'e a written response within 30 days after the ser\ice of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. A party who produces documents for inspection shall produce them as the\ are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. (c) Persons Not Parties. This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land. As amended Dec. 27. 1946, eff. Mar. 19, 1948; Mar. 30, 19"0, eft". )ulv 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980. Advisory Committee Note, 1980 Amendments Subdivision (b). The Committee is ad\ised that. "It is apparent!) not rare for parties deliberately to mix critical documents with others in the hope of obscuring significance." Report of the Special Committee for the Study of Discovery Abuse. Section of Litigation of the American Bar Association (1977) 22. The sentence added by this subdivision follows the recommendation of the Report. Rule 35. Physical and Mental Examination of Persons (a) Order for Examination. When the mental or ph>sical condition (includ- ing the blood group) of a part>-, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a ph\sician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specifs' the time, place, manner, conditions, and scope of the examination and the person or persons by uhom it is to be made. 87 Rule 35 Federal Rules of Civil Procedure (b) Report of Examining Physician. (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing tiie examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condi- tion, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may there- after examine him in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule. As amended Mar. 30, 1970, eff. July 1. 1970. Advisory Commhtee Note, 1970 Amendment Subdivision (a). Rule 35(a) has hitherto provided only for an order requiring a party to submit to an examination. It is desirable to extend the rule to provide for an order against the party for examination of a person in his custody or under his legal control. As appears from the provisions of amended Rule 37(b) (2) and the comment under that rule, an order to "produce" the third person imposes only an obligation to use good faith efforts to produce the person. The amendment will settle beyond doubt that a parent or guardian suing to recover for injuries to a minor may be ordered to produce the minor for examina- tion. Further, the amendment expressly includes blood examination v\ithin the kinds of examinations that can be ordered under the rule. Rule 36. Requests for Admission (a) Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate 88 Federal Rules of Ci% il Procedure Rule 36 to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of docu- ments shall be served with the request unless the\ ha\e been or are otherwise furnished or made a\ailable for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other part\ with or after service of the summons and complaint upon that party. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow , the part)' to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the part}' or by his attorney, but, unless the court shortens the time, a defendant shall not be required to ser\e answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering part> cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a part\ qualif) his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering partv' may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquir>' and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A part> who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the pro\isions of Rule 37(c), deny the matter or set forth reasons why he cannot admit or deny it. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be ser\ed. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The proxisions of Rule 37(a) (4) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereb> and the part\- who obtained the admission fails to satisfy the court that v\ ithdrawal or amend- ment will prejudice him in maintaining his action or defense on the merits. 89 Rule 36 Federal Rules of Civil Procedure Any admission made by a part>' under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in anv other proceeding. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970. eff. Julv 1, 1970. Advisory Committee Note, 1970 Amendments Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be. The changes made in the rule are designed to serve these purposes more effectively. Certain disagreements in the courts about the proper scope of the rule are resolved. In addition, the procedural operation of the rule is brought into line with other discover) procedures, and the binding effect of an admission is clarified. See generallv Finman, The Request for Admissions in Federal Civil Procedure, 71 Yale L.l.'371 (1962). Subdivision (a). As revised, the subdivision provides that a request may be made to admit any matters within the scope of Rule 26(b) that relate to statements or opinions of fact or of the application of law to fact. It thereby eliminates the requirement that the matters be "of fact." This change resolves conflicts in the court decisions as to whether a request to admit matters of "opinion" and matters involving "mi.xed law and fact" is proper under the rule. . . . Not only is it difficult as a practical matter to separate "fact" from "opinion," see 4 Moore's Federal Practice 1136.04 (2d ed. 1966); cf 2A Barron & Holtzoff, Federal Practice and Procedure 317 (Wright ed. I96I), but an admission on a matter of opinion may facilitate proof or narrow the issues or both. An admission of a matter involving the application of law to fact may, in a given case, even more clearly narrow the issues. For example, an admission that an employee acted in the scope of his employment may remove a major issue from the trial. In McSparran v. Hanigan, supra, plaintiff admitted that "the premises on v\hich said accident occurred, were occupied or under the control" of one of the defendants. 225 F. Supp. at 636. This admission, involving law as well as fact. remo\ed one of the issues from the lawsuit and thereby reduced the proof required at trial. The amended provision does not authorize requests for admissions of law unrelated to the facts of the case. Requests for admission involving the application of law to fact may create disputes between the parties which are best resolved in the presence of the judge after much or all of the other discovery has been completed. Power is therefore expressly conferred upon the court to defer decision until a pretrial conference is held or until a designated time prior to trial. On the other hand, the court should not automatically defer decision; in many instances, the importance of the admis- sion lies in enabling the requesting party to avoid the burdensome accumulation of proof prior to the pretrial conference. Courts have also divided on whether an answering partv' may properly object to request for admission as to matters which that partv regards as "in dispute." Compare, e.g.. Syracuse Broadcasting Corp. v. Newhouse. 271 F.2d 910. 917 90 Federal Rules of Civil Procedure Rule 37 (2d Cir. 1959); Driver v. Cindy Mfg. Corp., 24 F.R.D. 473 (E.D. Pa. 1959); with, e.g., McConigle v. Baxter, 27 F.R.D. 504 (ED. Pa. 1961); United States V. Ehbauer, 13 F.R.D. 462 (W.D. Mo. 1952). The proper response in such cases is an answer. The very purpose of the request is to ascertain whether the answer- ing party is prepared to admit or regards the matter as presenting a genuine issue for trial. In his answer, the party may deny, or he may give as his reason for inability to admit or deny the existence of a genuine issue. The party runs no risk of sanctions if the matter is genuinely in issue, since Rule 37(c) provides a sanction of costs only when there are no good reasons for a failure to admit. On the other hand, requests to admit may be so voluminous and so framed that the answering party finds the task of identifying what is in dispute and what is not unduly burdensome. If so. the responding party may obtain a protective order under Rule 26(c). Some of the decisions sustaining objections on "disputability" grounds could have been justified by the burdensome character of the requests. See, e.g., Syracuse Broadcasting Corp. \. Newhouse, supra. Another sharp split of authority exists on the question whether a party may base his answer on lack of information or knowledge without seeking out addi- tional information. . . . The rule as revised adopts the majority view, as in keeping with a basic principle of the discovery rules that a reasonable burden may be imposed on the parties when its discharge will facilitate preparation for trial and ease the trial process. It has been argued against this view that one side should not ha\e the burden of "proving" the other side's case. The revised rule requires onlv that the answering party make reasonable inquiry and secure such knowledge and infor- mation as are readily obtainable by him. In most instances, the investigation will be necessary either to his own case or to preparation for rebuttal. Even when it is not, the information may be close enough at hand to be "readily obtainable." Rule 36 requires only that the party state that he has taken these steps. The sanction for failure of a party to inform himself before he answers lies in the award of costs after trial, as provided in Rule 37(c). . . . Rule 37. Failure to Make or Cooperate in Discovery: Sanctions (a) Motion for Order Compelling Discovery. A part>', upon reasonable no- tice to other parties and ail persons affected thereby, may apply for an order compelling discover)' as follov\s: (1) Appropriate Court. An application for an order to a party may be made to the court in which the action is pending, or, on matters relating to a deposi- tion, to the court in the district where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the district where the deposition is being taken. (2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designa- tion under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection 91 Rule 37 Federal Rules of Civil Procedure submitted under Rule H, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering part)' may move for an order compelling an answer, or a designation, or an order com- pelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would ha\e been empowered to make on a motion made pursuant to Rule 26(c). f3) Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer. (4j Award of Expenses of Motion. If the motion is granted, the court shall, after opportunity' for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtain- ing the order, including attornev's fees, unless the court finds that the opposi- tion to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses in- cutred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circum- stances make an award of expenses unjust. If the motion is granted in part and denied in part, the court ma> apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (b) Failure to Comply with Order. (J) Sanctions by Court in District Where Deposition Is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. (2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testifv' on behalf of a parh fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; 92 Federal Rules of Ci\il Procedure Rule 37 (B) An order refusing to allow the disobedient part\' to support or oppose designated claims or defenses, or prohibiting him from introducing desig- nated matters in e\idence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedi- ent party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; (E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused b\' the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that ( 1 ) the request was held objectionable pursuant to Rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or (4) there was other good reason for the failure to admit. (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a parts' or an officer, director, or managmg agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (I) to appear before the officer who is to take his deposition, after being ser\ed with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take an\ action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attornex' advising him or both to pay the reasonable 93 Rule 37 Federal Rules of Civil Procedure expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this subdixision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c). (e) Subpoena of Person in Foreign Country. Abrogated bv amendment Apr. 29, 1980, eff. Aug. 1, 1980. (f) Expenses against United States. Except to the extent permitted by statute, expenses and fees may not be awarded against the United States under this rule. (g) Failure to Participate in the Framing of a Discovery Plan. If a party or his attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity' for hearing, require such party or his attorney to pay to any other part)' the reasonable expenses, including attorney's fees, caused bv the failure. As amended Dec. 29, 1948, eff. Oct. 20. 1949; Mar. 30, 1970, eff. Julv 1, 1970; Apr. 29, 1980, eff. Aug. 1, 1980. VI. Trials Rule 38. Jury Trial of Right (a) Right Preserved. The right of trial b\' jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. (b) Demand. Any party may demand a trial b\ jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand ma\' be indorsed upon a pleading of the party. (c) Same: Specification of Issues. In his demand a party may spccif\' the issues which he wishes so tried; otherwise he shall be deemed to have de- manded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial bv jurv of anv other or all of the issues of fact in the action. 94 Federal Rules of Ci\il Procedure Rule 40 (d) Waiver. The failure of a party to ser\e a demand as required by this rule and to file it as required by Rule 5(d) constitutes a \vai\er by him of trial by jur\\ A demand for trial by jury made as herein provided may not be with- drawn u ithout the consent of the parties. (e) Admiralty and Maritime Claims. These rules shall not be construed to create a right to trial b\ jur> of the issues in an admiralty or maritime claim within the meaning of Rule 9(h). Added Feb. 28. 1966, eff. July 1, 1966. Rule 39. Trial by Jury or by the Court (a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial b\ jur*' of some or all of those issues does not exist under the Constitution or statutes of the United States. (b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jur\- in an action in which such a demand might ha\e been made of right, the court in its discretion upon motion ma\ order a trial by a jury of any or all issues. (c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jupi' the court upon motion or of its ovvn initiative may try any issue with an advisor.- jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jurs' had been a matter of right. Rule 40. Assignment of Cases for Trial The district courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or (2) upon request of a parts- and notice to the other parties or (3) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by any statute of the United States. 95 Rule 41 Federal Rules of Civil Procedure Rule 41. Dismissal of Actions (a) Voluntary Dismissal: Effect Thereof (1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 4, 1967, eff. Julv 1, 1968. (2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismised at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to compK w ith these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff', in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. As amended Dec. 27, 1946, eff. Mar. 19, 1948; )an. 21. 1965, eff. July 1, 1963; Feb. 29, 1966, eff". July 1. 1966. (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, % Federal Rules of Ci\ il Procedure Rule 42 or third-parh' claim. A \oluntary dismissal by the claimant alone pursuant to paragraph (1) of subdi\ision (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. (d) Costs of Previously Dismissed Action. If a plaintiff who has once dis- missed an action in an\ court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previousK dismissed as it ma> deem proper and ma\' stay the proceedings in the action until the plaintiff has complied with the order. Advisory Committee Note. 1963 Amendments Under the present text of the second sentence of this subdi\ ision, the motion for dismissal at the close of the plaintiffs evidence may be made in a case tried to a jury as well as in a case tried without a jur.-. But, when made in a jury-tried case, this motion overlaps the motion for a directed verdict under Rule 50(a), which is also available in the same situation. It has been held that the standard to be applied in deciding the Rule 41(b) motion at the close of the plaintiffs evidence in a jur\-tried case is the same as that used upon a motion for a directed verdict made at the same stage; and, just as the court need not make findings pursuant to Rule 52(a) when it directs a verdict, so in a jun.-tried case it may omit these findings in granting the Rule 41(b) motion. See generally O'Brien v. Westing- house Electric Corp., 295 F.2d 1, 5-10 (3d Cir. 1961). As indicated by the discussion in the O'Brien case, the overlap has caused confusion. Accordingly, the second and third sentences of Rule 41(b) are amended to provide that the motion for dismissal at the close of the plaintiffs evidence shall apply only to non-jur\- cases (including cases tried with an advisor.- jur>). Hereafter the correct motion in jur. -tried cases will be the motion for a directed verdict. This involves no change of substance. . . . The first sentence of Rule 41(b), providing for dismissal for failure to prosecute or to compK' with the Rules or an\ order of court, and the general pro\isions of the last sentence remain applicable in jup. as well as non-jur. cases. . . . Rule 42. Consolidation; Separate Trials (a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it ma\' make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and econ- omy, may order a separate trial of any claim, cross-claim, counterclaim, or 97 Rule 42 Federal Rules of Civil Procedure third-party claim, or of any separate issue or of any number of claims, cross- claims, counterclaims, third-part\' claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Consti- tution or as given by a statute of the United States. As amended Feb.' 28, 1966, eff. July 1, 1966. Rule 43. Taking of Testimony (a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of Congress or by these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court. A,s amended Nov. 20, 1972, and expressly approved by P.L. 93-595, eff. July 1, 1975. (b) Scope of Examination and Cross-Examination. Abrogated bv amend- ment Nov. 20, 1972, and expressly approved by P.L. 93-595, eff. July 1, 1975. (c) Record of Excluded Evidence. Abrogated by amendment Nov. 20, 1972, and expressly approved by P.L. 93-595, eff. July 1, 1975. The amending order did not reletter the subdivisions that follow. (d) Affimiation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof (e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (f) Interpreters. The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. Added Feb. 28, 1966, eff. July 1. 1966. Rule 44. Proof of Official Record (a) Authentication. (I) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territor\- of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evi- denced by an official publication thereof or by a copy attested by the officer 98 Federal Rules of Ci\ il Procedure Rule +4. 1 having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer ha\ ing a seal of office and ha\ ing official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. (2j Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a cop\' thereof, attested by a person authorized to make the attestation, and accompa- nied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and offical position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court ma\', for good cause shown, (i) admit an attested copy without final certifica- tion or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification. (b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated b>' the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (c) Other Proof. This rule does not prevent the proof of official records or of entrv or lack of entrv' therein bv anv other method authorized bv law. As amended Feb.'ZS, 1966, eff. July 1, 1966. Rule 44.1. Determination of Foreign Law A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimonv, whether or not submitted by a partv' or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law. Added Feb. 28, 1966, eff. July 1, 1966; as amended Nov. 20, 1972, and expressly approved by P.L. 9?-595, eff. July I, 1975. 99 Rule 45 Federal Rules of Civil Procedure Rule 45. Subpoena (a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. (b) For Production of Documentary Evidence. A subpoena may also com- mand the person to whom it is directed to produce the books, papers, docu- ments, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreason- able and oppressive or (2) condition denial of the motion upon the advance- ment by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. As amended Dec. 27, 1946, eff. March 19, 1948. (c) Service. A subpoena may be served by the marshal, by his deputy, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day's atten- dance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. (d) Subpoena for Taking Depositions; Place of Examination. (1) Proof of service of a notice to take a deposition as provided in Rules 30(b) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the district court for the district in which the deposition is to be taken of subpoenas for the persons named or described therein. Proof of service may be made by filing with the clerk of the district court for the district in which the deposition is to be taken a copy of the notice together with a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain mat- ters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivi- sion (b) of this rule. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compli- 100 Federal Rules of Civil Procedure Rule 45 ance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursu- ant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition. (2) A person to whom a subpoena for the taking of a deposition is directed may be required to attend at any place within 100 miles from the place where that person resides, is employed or transacts business in person, or is served, or at such other convenient place as is fixed bv an order of court. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Mar. 30, 1970, eff. July 1, 1970: Apr. 29. 1980, eff. Aug. 1, 1980; Apr. 29, 1985; eff. Aug. 1, 1985. (e) Subpoena for a Hearing or Trial. (1) At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of the district court for the district in which the hearing or trial is held. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the district, or at any place without the district that is within 100 miles of the place of the hearing or trial specified in the subpoena, or at a place within the state where a statute or rule of court permits service of a subpoena issued by a state court of general jurisdic- tion sitting in the place where the district court is held. When a statute of the United States provides therefor, the court upon proper application and cause shown may authorize the service of a subpoena at any other place. (2) A subpoena directed to a witness in a foreign country shall under the circumstances and in the manner and be served as provided in Title 28, U.S.C. S1783. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 29, 1980, eff Aug. 1, 1980. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued. Advisory Committee Note, 1980 Amendments Subdivision (e)(1). The amendment makes the reach of a subpoena of a district court at least as extensive as that of the state courts of general jurisdic- tion in the state in which the district court is held. Under the present rule the reach of a district court subpoena is often greater, since it extends throughout 101 Rule 45 Federal Rules of Civil Procedure the district. No reason appears why it should be less, as it sometimes is because of the accident of district lines. Restrictions upon the reach of subpoenas are imposed to prevent undue inconvenience to witnesses. State statutes and rules of court are quite likely to reflect the varying degrees of difficulh and expense attendant upon local travel. Rule 46. Exceptions Unnecessary Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a part)' has no opportunit}' to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him. Rule 47. Jurors (a) Examination of Jurors. The court may permit the parties of their at- torneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquirv' as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. (b) Alternate Jurors. The court may direct that not more than six jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, 2 peremptorv' challenges if 3 or 4 alternate jurors are to be impanelled, and ■? peremptory challenges if 5 or 6 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against an alternate juror. As amended Feb. 28, 1966, eff. July 1, 1966. 102 Federal Rules of Civil Procedure Rule 49 Rule 48. Juries of Less Than Twelve — Majority Verdict The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. Rule 49. Special Verdicts and Interrogatories (a) Special Verdicts. The court may require a jun.' to return only a special \erdict in the form of a special vvritten finding upon each issue of fact. In that e\ent the court may submit to the jury written questions susceptible of categori- cal or other brief answer or ma\ submit written forms of the several special findings which might properly be made under the pleadings and e\ idence; or it ma\ use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessan,' to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised b\ the pleadings or by the e\ idence, each party wai\es his right to a trial by jur>- of the issue so omitted unless before the jury retires he demands its submission to the jury. .'\s to an issue omitted v\ ithout such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special \erdict. (b) General Verdict Accompanied by Answer to Interrogatories. The court may submit to the jury, together with appropriate forms for a general verdict, w ritten interrogatories upon one or more issues of fact the decision of w hich is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jur\' both to make ansv\ers to the interrogatories and to render a general verdict, and the court shall direct the jur\ both to make written answers and to render a general verdict. When the general \erdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general \ erdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsis- tent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial. As amended Jan. 21, 1963, eff. July 1, 1963. 103 Rule 50 f'ederal Rules of Civil Procedure Rule 50. Motion for a Directed Verdict and for Judgment Not- withstanding the Verdict (a) Motion for Directed Verdict: When Made; Effect. A partv' who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds there- for. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. As amended Jan. 21, 1963, eff. July 1, 1965. (b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judg- ment and either order a new trial or direct the entr>' of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. As amended Jan. 21, 1963, eff. July 1, 1963, (c) Same: Conditional Rulings on Grant of Motion. (1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specif>' the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finalih' of the judgment, in case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court. 104 Federal Rules of Civil Procedure Rule 50 (2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict. Added Jan. 21. 1963, eff. July 1, 1963. (d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment not- withstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted. Added Jan. 21, 1963, eff. July 1, 1963. Advisory Committee Notes, 1963 Amendments Subdivision (c) deals with the situation where a part\' joins a motion for a new trial with his motion for judgment no. v., or prays for a new trial in the alterna- tive, and the motion for judgment n.o.v. is granted. The procedure to be fol- lowed in making rulings on the motion for the new trial, and the consequences of the rulings thereon, were partly set out in Montgomery Ward & Co. v. Duncan, 511 U.S. 243, 253 (1940), and have been further elaborated in later cases. . . . However, courts as well as counsel have often misunderstood the procedure, and it will be helpful to summarize the proper practice in the text of the rule. The amendments do not alter the effects of a jury verdict or the scope of appellate review. In the situation mentioned, subdivision (c)(1) requires that the court make a "conditional" ruling on the new-trial motion, i.e.. a ruling which goes on the assumption that the motion for judgment n.o.v. was erroneously granted and will be reversed or vacated; and the court is required to state its grounds for the condi- tional ruling. Subdivision (c)(1) then spells out the consequences of a reversal of the judgment in the light of the conditional ruling on the new-trial motion. If the motion for new trial has been conditionally granted, and the judgment is reversed, "the new trial shall proceed unless the appellate court has otherwise ordered." The party against whom the judgment n.o.v. was entered below may, as appellant, besides seeking to overthrow that judgment, also attack the condi- tional grant of the new trial. And the appellate court, if it reverses the judgment n.o.v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict. . . . If the motion for a new trial has been conditionally denied, and the judgment is reversed, "subsequent proceedings shall be in accordance with the order of the appellate court." The party in whose favor judgment n.o.v. was entered below may, as appellee, besides seeking to uphold that judgment, also urge on the 105 Rule 50 Federal Rules of Civil Procedure appellate court that the trial court committed error in conditionally denying the new trial. The appellee may assert this error in his brief, without taking a cross- appeal. ... If the appellate court concludes that the judgment cannot stand, but accepts the appellee's contention that there was error in the conditional denial of the new trial, it may order a new trial in lieu of directing the entr>' of judgment upon the verdict. Subdivision (c)(2), which also deals with the situation vshcre the trial court has granted the motion for judgment no. v., states that the verdict-u inner may apply to the trial court for a new trial pursuant to Rule 59 after the judgment n.o.v. has been entered against him. In arguing to the trial court in opposition to the motion for judgment n.o.w, the verdict-winner may, and often will, contend that he is entitled, at the least, to a new trial, and the court has a range of discretion to grant a new trial or (where plaintiff won the verdict) to order a dismissal of the action without prejudice instead of granting judgment n.o.v. . . . Subdivision (d) deals with the situation where judgment has been entered on the jury \erdict, the motion for judgment n.o.\. and any motion for a new trial having been denied b\ the trial court. The verdict-winner, as appellee, besides seeking to uphold the judgment, may urge upon the appellate court that in case the trial court is found to have erred in entering judgment on the \erdict, there are grounds for granting him a new trial instead of directing the entr\' of judgment for his opponent. In appropriate cases the appellate court is not precluded from itself directing that a new trial be had. . . . Rule 51. Instructions to Jury: Objection At the close of the e\idence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. Rule 52. Findings by the Court (a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts special!) and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutor) injunctions the court shall simi- larly set forth the findings of fact and conclusions of law which constitute the 106 Federal Rnks ofChil Pnicednre Rule 52 grounds of its action. Requests for findings are not necessan~ for purposes of ie%iew. Findings of fact, niiether based on oral or dociunentar>~ exidence, shaO not be set aside unless deaih' enoneous. and due regard shall be ^ven to tbe opportunity cf the trial court to judge of the credibilitii ai the witnesses. The foldings of a master, to the extent that the court ad<^)ts them, shall be con- sideied as the finding d[ the court. It will be su£Bcient if the findings oi fact and conduaons of law are stated oialh' and lecmded in cqioi court following the dose of the e\idence or appear in an ofNnion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessar>~ on decisions of motioiis under Rules 12 or >6 or any other motion except as ;xo\ided in Rule 41 (b). As amended Dec. 27, 1916, eff; Mar. 19. 19+8: Jan. 21, 1%3, eff. JuK 1, 1%3; Apr. 29, 1985. eff. Aug. 1, 1985. (b) .Amendment. Upon motion oi a party made not later than 10 da}^ after entry of judgment of the court may amend its findings or male additional fanding^ and may amend the judgment accordingly. The moticMi may be made with a motion for a new trial pursuant to Rule 59. Wlien findings oi fact are made in actions tried b>' the court without a jury , the question (^the sufficiency of the evideiKe to support the findings nia>- thereafter be raised n^iether or not the pait>- raising the question has made in the district court an objection to such findings or has made a motion to amoid them or a motion for judgmoit Advbory CoxonTTEE Notes, 1983 asd 1985 .Amendments 1983 .VkENDMENT Rule 52ia i has been amenckd to rexise te penuMmate sentence to pnjvide esplic- ilh- !hat ihe district judge msy make tbe finding of £act aiid conclusions oi Isw nequiied in nonjuiy cases ocaUy. Nothing in the prior test ci tbe mle foibids this practice, whicli is «iddy utilized by district iii(%es. See Christensen. A Modest Praposal for bnmeasuiable Improvement, 64 A.B.A.]. 6QB 1 19~Si. The objectii^ b to li^iten die buiden on the trial couit in piepaiing findings in nonjury cases. In addition, the amendment should reduce the number of published district court opinions diat embrace written findings. 1985 JiMtESDMEST Rule 52ia) has been amended (1| to svaid continued confiirion and conflicts among the ciicuits as to the standard of appellate leview of findii^ of fact by the court. '2 1 to diminate the disparity between tbe standard of ievie«' as litecalh' stated in Rule 52'aiand tbeptactice of smne courts of appeals, and (>! to promote natiointide unifonnitx'. See Note. Rule 52(ak .Appellate Reiie«~ of Findings of Fact Based on Documentan^ or Undisputed Evidence. -W \"a. L. Rev. 506, 536 (l%5i 107 Rule 52 Federal Rules of Civil Procedure Some courts of appeal have stated that when a trial court's findings do not rest on demeanor e\ idence and e\ aluation of a witness' credibilitv', there is no reason to defer to the trial court's findings and the appellate court more readily can find them to be clearly erroneous. . . . The principal argument advanced in favor of a more searching appellate review of findings by the district court based solely on documentary evidence is that the rationale of Rule 52(a) does not apply when the findings do not rest on the trial court's assessment of credibility of the witnesses but on an evaluation of docu- mentary proof and the drawing of inferences from it, thus eliminating the need for any special deference to the trial court's findings. These considerations are ouhveighed by the public interest in the stability and judicial economy that would be promoted by recognizing that the trial court, not the appellate tribunal, should be the finder of the facts. To permit courts of appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the district courts in the eyes of litigants, multiply appeals by encouraging appellate retrial of some factual issues, and needlessly reallocate judicial authority . Rule 53. Masters (a) Appointment and Compensation. The court in which any action is pending may appoint a special master therein. As used in these rules the word "master" includes a referee, an auditor, an examiner, and an assessor. The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct; provided that this provision for compensation shall not apply when a United States magistrate is designated to serve as a master pursuant to Title 28, U.S.C. )i636(b)(2). The master shall not retain his report as securitv' for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. (b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. Upon the consent of the parties, a magistrate may be designated to ser\e as a special master without regard to the provisions of this subdivision. (c) Powers. The order of reference to the master may specif)' or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and ma\' fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, 108 Federal Rules of Ci%il Procedure Rule 53 the master has and shall exercise the power to regulate all proceedings in ever\' hearing before him and to do all acts and take all measures necessary- or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writ- ings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the e\idence offered and excluded in the same manner and subject to the same limitations as pro\ided in the Federal Rules of Evi- dence for a court sitting without a jury. (d) Proceedings. (J) Meetings- When a reference is made, the clerk shall forthwith furnish the master u ith a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise pro\ides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notif\' the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may appK' to the court for an order requiring the master to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion; adjourn the proceedings to a future day, giving notice to the absent party of the adjournment. (2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and sen'ice of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give e\idence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45. (3) Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submit- ted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs. (e) Report. (J) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of 109 Rule 53 Federal Rules of Civil Procedure fact and conclusions of law, he shall set forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file v\ith it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing. (2) In Non-jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. (3j In ]ury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him arc admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report. (4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered. (5) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. (f) Applicability of Rule to Magistrates. A magistrate is subject to this rule only when the order referring a matter to the magistrate expressly pro\ ides that the reference is made under this Rule. As amended Feb. 28, 1966, eff. lulv 1, 1966; Apr. 28, 1983, eft. Aug. 1, 1983. Advisory Committee Notes, 1983 Amendments Subdivision (a). The creation of full-time magistrates, who scr\c at go\ern- ment expense and have no nonjudicial duties competing for their time, elimi- nates the need to appoint standing masters. Thus the prior pro\ision in Rule 53(a) authorizing the appointment of standing masters is deleted. Additionallx, the definition of "master" in subdivision (a) now eliminates the superseded office of commissioner. . . . Although the existence of magistrates may make the appointment of outside masters unnecessary in many instances, see, e.g., Gautreaux v. Chicago Housing Authority, 384 F. Supp. 37 (N.D. 111. 1974), mandamus denied sub nom., Chicago Housing Authority v. Austin, 511 F.2d 82 (7th Cir. 1975); Avco Corp. V. American Tel. & Tel. Co., 68 F.R.D. 532 (S.D. Ohio 1975), such masters 110 Federal Rules of Civil Procedure Rule 54 may prove useful when some special expertise is desired or when a magistrate is unavailable for lengthy and detailed super\ ision of a case. Subdivision (b). The provisions of 28 U.S.C. S636(b)(2) not only permit magistrates to serve as masters under Rule 53(b) but also eliminate the exceptional condition requirement of Rule 53(b) when the reference is made with the consent of the parties. The amendment to subdivision (b) brings Rule 53 into harmony with the statute by exempting magistrates, appointed with the consent of the parties, from the general requirement that some exceptional condition requires the reference. It should be noted that subdivision (b) does not address the ques- tion, raised in recent decisional law and commentary, as to whether the excep- tional condition requirement is applicable when private masters who are not magistrates are appointed with the consent of the parties. See Silberman, Masters and Magistrates Part II: The American Analogue. 50 N.Y.U.L. Rev. 1297, 1354 (1975). . . . Subdivision (f). The new subdivision responds to confusion flowing from the dual authority for references of pretrial matters to magistrates. Such references can be made, with or without the consent of the parties, pursuant to Rule 53 or under 28 U.S.C. S636(b)(I)(A) and (b)(1)(B). There are a number of distinctions between references made under the statute and under the rule. For example, under the statute nondispositi\e pretrial matters may be referred to a magistrate, without consent, for final determination with reconsideration by the district judge if the magistrate's order is clearly erroneous or contrary to law. Under the rule, however, the appointment of a master, without consent of the parties, to super- vise discovery would require some exceptional condition (Rule 53(b)) and would subject the proceedings to the report procedures of Rule 53(e). If an order of reference does not clearly articulate the source of the court's authority the result- ing proceedings could be subject to attack on grounds of the magistrate's noncom- pliance with the provisions of Rule 53. This subdivision therefore establishes a presumption that the limitations of Rule 53 are not applicable unless the refer- ence is specifically made subject to Rule 53. A magistrate serving as a special master under 28 U.S.C. )1636(b)(2) is gov- erned by the provisions of Rule 53, with the exceptional condition requirement lifted in the case of a consensual reference. VII. Judgment Rule 54. Judgments; Costs (a) Definition; Form. "Judgment" as u,sed in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings. (b) Judgment upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim. 111 Rule 54 Federal Rules of Civil Procedure counterclaim, cross-claim, or tliird-part>' claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determi- nation that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Apr. 17, 1961, eff. Julv 19, 1961. (c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. (d) Costs. Except v\hen express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. Advisory Committek Notks, 1946 and 1961 Amendments 1946 amendments The historic rule in the federal courts has always prohibited piecemeal disposal of litigation. . . . Rule 54(b) was originally adopted in view of the wide scope and possible content of the newly created "civil action" in order to a\oid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudica- tion of the entire case. It was not designed to overturn the settled federal rule stated above. . . . Unfortunately, this was not always understood, and some confusion ensued. Hence situations arose where district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finalit)' of the partial judgment in question. While most appellate courts have reached a result generally in accord with the intent of the rule, yet there have been divergent precedents and division of views which have served to render the issues more clouded to the parties appellant. It 112 Federal Rules of Civil Procedure Rule 55 hardly seems a case where multiplicity of precedents will tend to remove the problem from debate. . . . After extended consideration, (the Committee] con- cluded that a retention of the older federal rule was desirable, and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule. . . . 1961 AMENDMENTS A serious difficulty has . . . arisen because the rule speaks of claims but nowhere mentions parties. A line of cases has developed in the circuits consistently holding the rule to be inapplicable to the dismissal, e\en with the requisite trial court determination, of one or more but fewer than all defendants jointly charged in an action, i.e., charged with various forms of concerted or related wrongdoing or related liability. . . . For purposes of Rule 54(b) it was arguable that there were as manv "claims" as there were parties defendant and that the rule in its present text applied where fewer than all of the parties were dismissed . . . but the Courts of Appeals are now committed to an opposite view. . . . Rule 55. Default (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default. (b) Judgment. Judgment by default may be entered as follows: (1) By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear and if he is not an infant or incompetent person. (2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such repre- sentative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by repre- sentative, his representative) shall be served with written notice of the appli- cation for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investiga- tion of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of 113 Rule 5 5 Federal Rules of Civil Procedure trial by jury to the parties when and as required by any statute of the United States. (c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). (d) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c). (e) Judgment against the United States. No judgment by default shall be en- tered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence sati.sfactory to the court. Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expira- tion of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting af- fidavits for a summary judgment in his favor upon all or any part thereof As amended Dec. 27, 1946, eff. Mar. 19, 1948. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admis- sions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1965, eff. Julv 1, 1963. (d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a 114 Federal Rules of Civil Procedure Rule 57 trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. (e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affida\it shall be attached thereto or ser\ed therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise pro- vided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. As amended Jan. 21, 1963, eff. July I, 1963. (f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justif\- his opposition, the court may refuse the appli- cation for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. (g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forth- with order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney "s fees, and any offending party or attorney may be adjudged guilty of contempt. Rule 57. Declaratory Judgments The procedure for obtaining a declaratory judgment pursuant to Title 28 U.S.C. Ji2201, shall be in accordance v\ith these rules, and the right to trial by 115 Rule 57 F"ederal Rules of Civil Procedure jury may be demanded under the eircumstances and in tlie manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may ad- vance it on the calendar. As amended Dec. 29, 1948. eff, Oct. 20, 1949. Rule 58. Entry of Judgment Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course. As amended Dec, 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. Julv 1, 1963. Advisory Committee Note, 1963 Amendments Hitherto some difficult)' has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words. . . . Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the ci\ il docket as provided by Rule 79(a). However, where the opinion or memoranda has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of judgment was effecti\c, starting the time running for post-verdict motions and for the purpose of appeal. . . . The amended rule eliminates these uncertainties b\ requiring that there be a judgment set out on a separate document — distinct from any opinion or memo- randum— which provides the basis for the cntrv of judgment. That judgments shall be on separate documents is also indicated in Rule 79(b). . . . 116 Federal Rules of Civil Procedure Rule 60 Rule 59. New Trials; Amendment of Judgments (a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jun,', the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. A motion for a new trial shall be served not later than 10 davs after the entry of the judgment. As amended Dec. 27, 1946, eff. Mar. 19, 1948. (c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written shpulation. The court may permit reply affidavits. (d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor. As amended Feb. 28, 1966, eff. July 1, 1966. (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. Added Dec. 27, 1946, eff. Mar. 19, 1948. Rule 60. Relief from Judgment or Order (a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be cor- 117 Rule 60 Federal Rules of Civil Procedure rected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. As amended Dec. 27, 1946, eff. Mar. 19. 1948. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evi- dence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a part^' of his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresenta- tion, or other misconduct of an adverse party; (4) the judgment is \oid; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1). (2). and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a partv' from a judgment, order, or proceeding, or to grant relief to a defendant not actuallv personally notified as provided in Title 28, U.S.C., S1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or bv anv independent action. As amended Dec. 27, 1946, eff''. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949. Rule 61. Harmless Error No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or othenvise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. 118 Federal Rules of Civil Procedure Rule 62 Rule 62. Stay of Proceedings to Enforce a Judgment (a) Automatic Stay; Exceptions — Injunctions, Receiverships, and Patent Accountings. Except as stated herein, no execution shall issue upon a judg- ment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entr\-. Unless otherwise ordered b>' the court, an interlocutor.- or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letters patent, shall not be stayed during the period after its entr\ and until an appeal is taken or during the pendency of an appeal. The proxisions of subdi\i- sion (c) of this rule go\ern the suspending. modif\ing, restoring, or granting of an injunction during the pendency of an appeal. (b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the securit>' of the ad\erse part>' as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a mohon for judgment in accordance with a motion for a directed \erdict made pursuant to Rule 50, or of a mohon for amendment to the findings or for additional findings made pursuant to Rule 52(b). As amended Dec. 2", 1946, eff. .Mar. 19, 1948. (c) Injunction Pending .Appeal. When an appeal is taken from an interlocu- ton or final judgment granhng, dissoKing, or denying an injunchon, the court in its discretion may suspend, modih, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or othenvise as it considers proper for the security' of the rights of the adverse part). If the judgment appealed from is rendered by a district court of three judges specially constituted pursuant to a statute of the United States, no such order shall be made except (1) by such court sitting in open court or (2) by the assent of all the judges of such court e\ idenced bv their signatures to the order. (d) Stay upon .-Appeal. When an appeal is taken the appellant by giving a supersedeas bond ma\ obtain a stay subject to the exceptions contained in subdivision (a) of this rule. The bond max be given at or after the hme of filing the notice of appeal or of procuring the order allowing the appeal, as the case ma>' be. The sta>' is effech\e when the supersedeas bond is approved by the court. (e) Stay in Fa\or of the United States or .\gency Thereof When an appeal is taken by the United States or an officer or agenc>' thereof or by direction of any department of the Government of the United States and the operation or 119 Rule 62 Federal Rules of Civil Procedure enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant. (f) Stay According to State Law. in any state in which a judgment is a Hen upon the property of the judgment debtor and in which the judgment debtor is entitled to a stay of execution, a judgment debtor is entitled, in the district court held therein, to such stay as would be accorded him had the action been maintained in the courts of that state. (g) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequentlv to be entered. As amended Dec. 29, 1948, eff. Oct. 20, 1949. (h) Stay of Judgment as to Multiple Claims or Multiple Parties. When a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of that judgment until the entering of a subsequent judg- ment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered. Added Dec. 27, 1946, eff. Mar. 19, 1948; as amended Apr, 17, 1961, eff. July 19, 1961. Rule 63. Disability of a Judge If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or as- signed to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial. VIII. Provisional and Final Remedies and Special Proceedings Rule 64. Seizure of Person or Property At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfac- 120 Federal Rules of Civil Procedure Rule 65 tion of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) an\ existing statute of the United States go\ems to the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after remo\al, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration, and other corresponding or equi\alent remedies, however desig- nated and regardless of v\hether by state procedure the remedy is ancillan- to an action or must be obtained by an independent action. Rule 65. Injunctions (a) Preliminary Injunction. (1) Notice. No preliminarv- injunction shall be issued without notice to the adverse partv'. (2) Consolidation of Hearing with Trial on Merits. Before or after the com- mencement of the hearing of an application for a preliminan injunction, the court may order the trial of the action on the merits to be ad\anced and consolidated with the hearing of the applicahon. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary' injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any rights they may have to trial bv jur\-. As amended Feb. 28, 1966,' eff. July 1, 1966. (b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order ma\ be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury loss or damage will result to the applicant before the adverse part}' or his attorney can be heard in opposition, and (2) the applicanfs attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be re- quired. Everv' temporary' restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injur.' and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entn.', not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the part)' against whom the order is 121 Rule 65 Federal Rules of Civil Procedure directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary' restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. As amended Feb. 28, 1966, eff. July 1, 1966. (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or re- strained. No such security shall be required of the United States or of an officer or agency thereof. The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. ?, 1947, eff Mar. 19, 1948; Feb. 28, 1966, eff July I, 1966. (d) Form and Scope of Injunction or Restraining Order. Every order grant- ing an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. (e) Employer and Employee; Interpleader; Constitutional Cases. These rules do not modifv' any statute of the United States relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or the provisions of Title 28, U.S.C., S2361. relating to pre- liminary injunctions in actions of interpleader or in the nature of interpleader; or Title 28, U.S.C., $2284, relating to actions required by Act of Congress to be heard and determined by a district court of three judges. As amended Dec. 29, 1948, eff Oct. 20, 1949. 122 Federal Rules of Civil Procedure Rule 66 Advisory Committee Note, 1966 Amendments Subdivision (b). In view of the possibly drastic consequences of a temporary restraining order, the opposition should be heard, if feasible, before the order is granted. Many judges have properly insisted that, when time does not permit of formal notice of the application to the adverse party, some expedient, such as telephonic notice to the attorney for the adverse party, be resorted to if this can reasonably be done. On occasion, however, temporary restraining orders have been issued without any notice when it was feasible for some fair, although informal, notice to be given. . . . Heretofore the first sentence of subdivision (b), in referring to a notice "served" on the "ad\erse party" on which a "hearing" could be held, perhaps invited the interpretation that the order might be granted without notice if the circumstances did not permit of a formal hearing on the basis of a formal notice. The subdivi- sion is amended to make it plain that informal notice, which may be communi- cated to the attorney rather than the adverse part)-, is to be preferred to no notice at all. Before notice can be dispensed with, the applicant's counsel must give his certificate as to any efforts made to give notice and the reasons why notice should not be required. This certificate is in addition to the requirement of an affidavit or verified complaint setting forth the facts as to the irreparable injury which would result before the opposition could be heard. . . . Rule 65.1. Security: Proceedings against Sureties Whenever these rules, including the Supplemental Rules for Certain .\dnii- ralt\- and Maritime Claims, require or permit the giving of securitv' by a part)-, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety' submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liabilitv' on the bond or undertaking may be ser\ed. His liabilitv' may be enforced on motion without the necessitv' of an independent action. The motion and such notice of the motion as the court prescribes may be ser\ed on the clerk of the court, who shall forthwith mail copies to the sureties if their addresses are knov\n. Added Feb. 28, 1966, eff. July I, 1966. Rule 66. Receivers Appointed by Federal Courts An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accor- dance with the practice heretofore followed in the courts of the United States or 123 Rule 66 Federal Rules of Civil Procedure as provided in rules promulgated by the district courts. In all other respects the action in which the appointment of a recei\er is sought or which is brought by or against a receiver is governed by these rules. As amended Dec. 27. 1946, eff. Mar. 19, 1948; Dec. 29, 1948. eff. Oct. 20. 1949. Rule 67. Deposit in Court In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing, whether or not that party claims all or any part of the sum or thing. The party making the deposit shall serve the order permitting deposit on the clerk of the court. Money paid into court under this rule shall be deposited and withdrawn in accordance with the provisions of Title 28, U.S.C.. ^)i2041, and 2042; the Act of June 26, 1934, c. 756, S23, as amended (48 Stat. 1236, 58 Stat. 845), U.S.C., Title 31, S725v; or any like statute. The fund shall be deposited in an interest-bearing account or invested in an interest-bearing instrument approved by the court. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 28, 1983, eff. Aug. 1, 1983. Advisory Committee Notes, 1983 Amendment Rule 67 has been amended in three ways. The first change is the addition of the clause in the first sentence. Some courts have construed the present rule to permit deposit only when the party making it claims no interest in the fund or thing deposited. E.g., Blasin-Stern v. Beech-Nut Life Savings Corp., 429 F. Supp. 533 (D. Puerto Rico 1975); Dinkins v. General Aniline & Film Corp.. 214 F. Supp. 281 (S.D.N.Y. 1963). However, there are situations in which a litigant may wish to be relieved of responsibility for a sum or thing, but continue to claim an interest in all or part of it. In these cases the deposit-in-court procedure should be available; in addition to the advantages to the part\ making the deposit, the procedure gives other litigants assurance that any judgment will be collectable. The amendment is intended to accomplish that. The second change is the addition of a requirement that the order of deposit be served on the clerk of the court in which the sum or thing is to be deposited. This is simply to assure that the clerk knows what is being deposited and what his responsibilities are with respect to the deposit. The latter point is particularly important since the rule as amended contemplates that deposits will be placed in interest-bearing accounts; the clerk must know what treatment has been ordered for the particular deposit. The third change is to require that any money be deposited in an interest-bear- ing account or instrument approved by the court. 124 Federal Rules of Civil Procedure Rule 69 Rule 68. Offer of Judgment At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party ad- judged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Feb. 28, 1966, eff. July 1, 1966. Rule 69. Execution (a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held. As amended Mar. 30, 1970, eff. July 1, 1970. (b) Against Certain Public Officers. When a judgment has been entered against a collector or other officer of revenue under the circumstances stated in Title 28, U.S.C, ^2006, or against an officer of Congress in an action mentioned m the Act of March 3, 1875, c. 130, SS (18 Stat. 401), U.S.C, Title 2, SI 18. and when the court has given the certificate of probable cause 125 Rule 69 Federal Rules of Civil Procedure for his act as provided in those statutes, execution shall not issue against the officer or his propert>' but the final judgment shall be satisfied as provided in such statutes. As amended Dec. 29, 1948, efF. Oct. 20. 1949. Rule 70. Judgment for Specific Acts; Vesting Title If a judgment directs a part}' to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the part)' fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient part\' by some other person appointed by the court and the act when so done has like effect as if done by the parh'. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient partv' to compel obedience to the judgment. The court ma\' also in proper cases adjudge the party in contempt. If real or personal property is within the district, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any part)' and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk. Rule 71. Process in Behalf of and against Persons Not Parties When an order is made in fa\or of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party. Rule 71 A. Condemnation of Property (a) Applicability of Other Rules. The Rules of Civil Procedure for the United States District Courts govern the procedure for the condemnation of real and personal property under the power of eminent domain, except as otherwise provided in this rule. (b) Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use. 126 Federal Rules of Civil Procedure Rule 71 A (c) Complaint. (1) Caption. The complaint shall contain a caption as provided in Rule 10(a), except that the plaintiff shall name as defendants the propert>', designated generally b> kind, quantih', and location, and at least one of the owners of some part of or interest in the property . (2) Contents. The complaint shall contain a short and plain statement of the authoritv- for the taking, the use for which the property- is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and as to each separate piece of property a designation of the defen- dants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plamtiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained b\ a reasonabK diligent search of the records, considering the character and value of the property involved and the interests to be acquired, and also those whose names have otherwise been learned. .\11 others may be made defendants under the designation "Unknown Owners." Process shall be sened as provided in subdivision (d) of this rule upon all defendants, whether named as defen- dants at the time of the commencement of the action or subsequently added, and a defendant may answer as provided in subdivision (e) of this rule. The court meanwhile may order such distribution of a deposit as the facts warrant. (3) Filing. In addition to filing the complaint with the court, the plaintiff shall furnish to the clerk at least one copy thereof for the use of the defendants and additional copies at the request of the clerk or of a defendant. (d) Process. (J) Notice; Delivery. Upon the filing of the complaint the plaintiff shall forthwith deliver to the clerk joint or several notices directed to the defendants named or designated in the complaint. Addtional notices directed to defendants subsequently added shall be so delivered. The delivery of the notice and its service have the same effect as the deliven' and service of the summons under Rule 4. (2) Same; Form. Each notice shall state the court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property, a description of his property sufficient for its identification, the inter- est to be taken, the authority for the taking, the uses for which the properh- is to be taken, that the defendant may serve upon the plaintiffs attorney an answer within 20 days after service of the notice, and that the failure so to serve an answer constitutes a consent to the taking and to the authority of the court to 127 Rule 71 A Federal Rules of Civil Procedure proceed to hear the action and to fix the compensation. The notice shall conclude with the name of the plaintiff's attorney and an address within the district in which action is brought where he may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed. f3J Service of Notice. (i) Personal service. Personal service of the notice (but without copies of the complaint) shall be made in accordance with Rule 4(c) and (d) upon a defendant who resides within the United States or its territories or insular possessions and whose residence is known. As amended Jan. 21, 1963, eff. July 1, 1963. (ii) Sert'ice by publication. Upon the filing of a certificate of the plaintifTs attorney stating that he believes a defendant cannot be personally ser\ed, because after diligent inquiry within the state in which the complaint is filed his place of residence cannot be ascertained by the plaintiff or, if ascertained, that it is beyond the territorial limits of personal service as pro\ided in this rule, service of the notice shall be made on this defendant by publication in a newspaper published in the county where the property is located, or if there is no such newspaper, then in a newspaper having a general circulation where the property is located, once a week for not less than three successive weeks. Prior to the last publication, a copy of the notice shall also be mailed to a defendant who cannot be personally served as provided in this rule but whose place of residence is then known. Unknown owners may be served by publication in like manner by a notice addressed to "Unknown Owners." Service by publication is complete upon the date of the last publication. Proof of publication and mailing shall be made by certificate of the plaintiffs attorney, to which shall be attached a printed copy of the published notice with the name and dates of the newspaper marked thereon. (4) Return; Amendment. Proof of service of the notice shall be made and amendment of the notice or proof of its service allowed in the manner provided for the return and amendment of the summons under Rule 4(g) and (h). (e) Appearance or Answer. If a defendant has no objection or defense to the taking of his property, he may serve a notice of appearance designating the property in which he claims to be interested. Thereafter he shall receive notice of all proceedings affecting it. if a defendant has any objection or defense to the taking of his property, he shall ser\e his answer within 20 days after the service of notice upon him. The answer shall identifi.' the property in which he claims to have an interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not he has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribu- 128 Federal Rules of Civil Procedure Rule 71 A tion of the award. No other pleading or motion asserting any additional defense or objection shall be allowed. (f) Amendment of Pleadings. Without leave of court, the plaintiff may amend the complaint at an\ time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by subdivision (i) of this rule. The plaintiff need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Rule 5(b), upon any party affected thereby who has appeared and, in the manner provided in subdivision (d) of this rule, upon any party affected thereby who has not appeared. The plaintiff shall furnish to the clerk of the court for the use of the defendants at least one copy of each amendment, and he shall furnish additional copies on the request of the clerk or of a defendant. Within the hme allowed b> subdivision (e) of this rule a defendant may ser\e his answer to the amended pleading, in the form and manner and with the same effect as there provided. (g) Substitution of Parties. If a defendant dies or becomes incompetent or transfers his interest after his joinder, the court may order substituhon of the proper parh upon motion and notice of hearing. If the motion and notice of hearing are to be sened upon a person not already a party, service shall be made as provided in subdivision (d)(3l of this rule. (h) Trial. If the action involves the exercise of the power of eminent domain under the law of the United States, any tribunal specialh constituted by an .^ct of Congress governing the case for the trial of the issue of just compensation shall be the tribunal for the determination of that issue; but if there is no such specially constituted tribunal an\ partv' may have a trial by jur>' of the issue of just compensation by filing a demand therefor within the time allowed for answer or within such further time as the court may fix, unless the court in its discrehon orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of compensation shall be determined bv a commission of three persons appointed b\' it. In the event that a commission is appointed the court may direct that not more than hvo additional persons serve as alternate commissioners to hear the case and replace commissioners who, prior to the time when a decision is filed, are found by the court to be unable or disqualified to perform their duties. An alternate who does not replace a regular commissioner shall be discharged after the commission renders its final decision. Before appointing the members of the commission and alternates the court shall advise the parties of the idenhtv and qualifications of each prospective commissioner and alternate and mav' permit the parties to examine each such designee. The parties shall not be permitted or required by the court to suggest nominees. Each party shall have the right to object for valid cause to the appointment of any person as a 129 Rule 71 A Federal Rules of Civil Procedure commissioner or alternate. If a commission is appointed it shall have the powers of a master provided in subdivision (c) of Rule 53 and proceedings before it shall be governed by the provisions of paragraphs (I) and (2) of subdivision (d) of Rule 53. Its action and report shall be determined by a majority and its findings and report shall ha\e the effect, and be dealt with by the court in accordance with the practice, prescribed in paragraph (2) of subdi- vision (e) of Rule 53. Trial of all issues shall otherwise be by the court. As amended Apr. 29, 1985, eff. Aug. 1, 1985. (i) Dismissal of Action. (J) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in or taken possession, the plaintiff may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed. (2) By Stipulation. Before the entry of any judgment vesting the plaintiff with title or a lesser interest in or possession of property, the action may be dismissed in whole or in part, without an order of the court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the court may vacate any judgment that has been entered. (3) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the court may dismiss the action as to that property, except that it shall not dismiss the action as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, but shall award just compensation for the possession, title or lesser interest so taken. The court at any time may drop a defendant unnecessarily or improperly joined. (4) Effect. Except as otherwise pro\ided in the notice, or stipulation of dismissal, or order of the court, any dismissal is without prejudice. (j) Deposit and Its Distribution. The plaintiff shall deposit with the court any money required by law as a condition to the exercise of the power of eminent domain; and, although not so required, may make a deposit when permitted by statute. In such cases the court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and pay- ment of just compensation. If the compensation finally awarded to any defen- dant exceeds the amount which has been paid to him on distribution of the deposit, the court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finalK' awarded to any defen- dant is less than the amount which has been paid to him, the court shall enter judgment against him and in fa\or of the plaintiff for the overpayment. 130 Federal Rules of Civil Procedure Rule 72 (k) Condemnation under a State's Power of Eminent Domain. The practice as herein prescribed governs in actions involving the exercise of the power of eminent domain under the law of a state, pro\ ided that if the state law makes provision for trial of any issue by jury, or for trial of the issue of compensation by jury or commission or both, that provision shall be followed. (1) Costs. Costs are not subject to Rule 54(d). Added Apr. 30, 1951, eff. Aug. 1, 1951. IX. Magistrates Rule 72. Magistrates; Pretrial Matters (a) Nondispositive Matters. A magistrate to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. The district judge to whom the case is assigned shall consider objections made by the parties, provided they are served and filed within 10 days after the entry of the order, and shall modif\' or set aside an\ portion of the magistrate's order found to be clearly erroneous or contrary to law, (b) Dispositive Motions and Prisoner Petitions. A magistrate assigned with- out consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confine- ment shall promptly conduct such proceedings as are required. A record shall be made of all evidentiary proceedings before the magistrate, and a record may be made of such other proceedings as the magistrate deems necessary. The magistrate shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact when appropriate. The clerk shall forthwith mail copies to all parties. A party objecting to the recommended disposition of the matter shall prompdy arrange for the transcription of the record, or portions of it as all parties may agree upon or the magistrate deems sufficient, unless the district judge otherwise directs. Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objec- tions to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof The district judge to whom the case is assigned shall make a de novo determi- nation upon the record, or after additional evidence, of any portion of the magistrate's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the 131 Rule 72 Federal Rules of Civil Procedure recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions. Added Apr, 28, 1983, eff. Aug. 1, 1985. Advisory Committee Note Subdivision (a). This subdivision addresses court-ordered referrals of nondis- posifive matters under 28 U.S.C S636(b)(l)(A). The rule calls for a written order of the magistrate's disposition to preserve the record and facilitate review. An oral order read into the record by the magistrate will satisfy this requirement. No specific procedures or timetables for raising objections to the magistrate's rulings on nondispositive matters are set forth in the Magistrates Act. The rule fixes a 10-day period in order to avoid uncertainty and provide uniformity that will eliminate the confusion that might arise if different periods were prescribed by local rule in different districts. It also contemplated that a party who is success- ful before the magistrate will be afforded an opportunity to respond to objections raised to the magistrate's ruling. The last sentence of subdivision (a) specifies that reconsideration of a magis- trate's order, as pro\ided for in the Magistrates Act, shall be by the district judge to whom the case is assigned. This rule does not restrict experimentation by the district courts under 28 U.S.C S656(bK5) involving references of matters other than pretrial matters, such as appointment of counsel, taking of default judg- ments, and acceptance of jury verdicts when the judge is unavailable. Subdivision (b). This subdivision governs court-ordered referrals of dispositive pretrial matters and prisoner petitions challenging conditions of confinement, pursuant to statutory authorization in 28 U.S.C. S636(b)(lHB). This rule does not extend to habeas corpus petitions, which are covered by the specific rules relating to proceedings under Sections 2254 and 2255 of Title 28. This rule implements the statutory procedures for making objections to the magistrate's proposed findings and recommendations. The 10-day period, as specified in the statute, is subject to Rule 6(e) which provides for an additional 3-day period when service is made by mail. Although no specific provision appears in the Magistrates Act, the mle specifies a 10-day period for a party to respond to objections to the magistrate's recommendation. Implementing the statutor\ requirements, the rule requires the district judge to whom the case is assigned to make a de novo determination of those portions of the report, findings, or recommendations to which timely objection is made. The term "de novo" signifies that the magistrate's findings are not protected by the clearly erroneous doctrine, but does not indicate that a second evidentiary hearing IS required. See United States v. Raddatz. 417 U.S. 667 (1980). See also Silber- man. Masters and Magistrates Part II: The American Analogue, 50 N.Y.U. L. Rev. 1297, 1367 (1975). When no timely objection is filed, the court need only satisf)' itself that there is no clear error on the face of the record in order to accept the recommendation. See Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cerf. denied. 419 U.S. 879. quoted in House Report No. 94-1609. 94th Cong. 2d Sess. (1976) at 3. Compare Park Motor Mart. Inc. v. Ford Motor Co.. 616 F.2d 603 (1st Cir. 1980). Failure to make timely objection to the magistrate's report prior to its adoption by the district judge may constitute 132 Federal Rules of Civil Procedure Rule 73 a waiver of appellate review of the district judge's order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Rule 73. Magistrates; Trial by Consent and Appeal Options (a) Powers; Procedure. When specially designated to exercise such jurisdic- tion by local rule or order of the district court and when all parties consent thereto, a magistrate may exercise the authoritv provided by Title 28, U.S.C. \636(c) and may conduct any or all proceedings, including a jury or nonjury trial, in a civil case. A record of the proceedings shall be made in accordance with the requirements of Title 28, U.S.C. S636(c)(7). (b) Consent. When a magistrate has been designated to exercise civil trial jurisdiction, the clerk shall give written notice to the parties of their opportunity to consent to the exercise by a magistrate of civil jurisdiction over the case, as authorized by Title 28, U.S.C. |J636(c). If, within the period specified by local rule, the parties agree to a magistrate's exercise of such authority, they shall execute and file a joint form of consent or separate forms of consent setting forth such election. No district judge, magistrate, or other court official shall attempt to persuade or induce a party to consent to a reference of a civil matter to a magistrate under this rule, nor shall a district judge or magistrate be informed of a party's response to the clerk's notification, unless all parties have consented to the referral of the matter to a magistrate. The district judge, for good cause shown on his own motion or under extraordinary circumstances shov\n by a party, may vacate a reference of a civil matter to a magistrate under this subdivision. (c) Normal Appeal Route. In accordance with Title 28, U.S.C. )i636(c)(3), unless the parties otherwise agree to the optional appeal route provided for in subdivision (d) of this rule, appeal from a judgment entered upon direction of a magistrate in proceedings under this rule will lie to the court of appeals as it would from a judgment of the district court. (d) Optional Appeal Route. In accordance with Title 28, U.S.C. |i636(c)(4), at the time of reference to a magistrate, the parties may consent to appeal on the record to a judge of the district court and thereafter, by petition only, to the court of appeals. Added Apr. 28, 1983, eft. Aug. 1, 1983. Advisory Committee Note Subdivision (a). This subdivision implements the broad authority of the 1979 amendments to the Magistrates Act, 28 U.S.C. ji636(c). which permit a magis- trate to sit in lieu of a district judge and exercise civil jurisdiction over a case, 133 Rule 73 Federal Rules of Civil Procedure when the parties consent. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343, 364-379 (1979). In order to exercise this jurisdiction, a magistrate must be specially designated under 28 U.S.C. S636(c)(l) by the district court or courts he serves. The only exception to a magistrate's exercise of civil jurisdiction, which includes the power to conduct jury and nonjury trials and decide dispositive motions, is the contempt power. A hearing on contempt is to be conducted by the district judge upon certification of the facts and an order to show cause by the magistrate. See 28 U.S.C. |i639(e). In view of 28 U.S.C. S636(c)(l) and this rule, it is unnecessary to amend Rule 58 to provide that the decision of a magistrate is a "decision by the court" for the purposes of that rule and a "final decision of the district court" for purposes of 28 U.S.C. S1291 governing appeals. Subdivision (b). This subdivision implements the blind consent provision of 28 U.S.C. S636(c)(2) and is designed to ensure that neither the judge nor the magistrate attempts to induce a party to consent to reference of a civil matter under this rule to a magistrate. See House Rep. No. 96-444, 96th Cong. 1st Sess. 8(1979). The rule opts for a uniform approach in implementing the consent pro\ision by directing the clerk to notify the parties of their opportunity to elect to proceed before a magistrate and by requiring the execution and filing of a consent form or forms setting forth the election. However, flexibility at the local level is preserved in that local rules will determine how notice shall be communicated to the parties, and local rules will specify the time period within which an election must be made. The last paragraph of subdivision (b) reiterates the provision in 28 U.S.C. S636(c)(6) for vacating a reference to the magistrate. Subdivision (c). Under 28 U.S.C. S636(c)(3), the norma! route of appeal from the judgment of a magistrate — the only route that will be available unless the parties otherwise agree in advance — is an appeal by the aggrieved party "directly to the appropriate United States court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court." The quoted statutory language indicates Congress' intent that the same procedures and standards of appealability that govern appeals from district court judgments govern appeals from magistrates' judgments. Subdivision (d). 28 U.S.C. )i636(c)(4) offers parties who consent to the exer- cise of civil jurisdiction by a magistrate an alternative appeal route to that pro- vided in subdivision (c) of this rule. This optional appellate route was provided by Congress in recognition of the fact that not all civil cases warrant the same appellate treatment. In cases where the amount in controversy is not great and there are no difficult questions of law to be resolved, the parties may desire to avoid the expense and delay of appeal to the court of appeals by electing an appeal to the district judge. See McCabe, The Federal Magistrate Act of 1979, 16 Harv. |. Legis, 343, 388 (1979). This subdivision provides that the parties may elect the optional appeal route at the time of reference to a magistrate. To this end, the notice by the clerk under subdivision (b) of this rule shall explain the appeal option and the corollary restriction on review by the court of appeals. This 134 Federal Rules of Civil Procedure Rule 74 approach will a\ oid later claims of lack of consent to the avenue of appeal. The choice of the alternative appeal route to the judge of the district court should be made by the parties in their forms of consent. Special appellate rules to govern appeals from a magistrate to a district judge appear in new Rules 74 through 76. Rule 74. Method of Appeal from Magistrate to District Judge under Title 28, U.S.C. 1^636(c)(4) and Rule 73(d). (a) When Taken. When the parties ha\e elected under Rule 75(d) to proceed by appeal to a district judge from an appealable decision made b\ a magistrate under the consent pro\isions of Title 28, U.S.C. .S636(c)(4), an appeal may be taken from the decision of a magistrate by filing with the clerk of the district court a notice of appeal within 30 days of the date of entrv of the judgment appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. If a hmely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days thereafter, or within the time otherwise pre- scribed by this subdivision, whiche\er period last expires. The running of the time for filing a notice of appeal is terminated as to all parties by the timely filing of any of the following motions with the magistrate by any party, and the full time for appeal from the judgment entered by the magistrate commences to run anew from entry of any of the following orders: ( 1 ) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. An interlocutory decision or order by a magistrate which, if made by a judge of the district court, could be appealed under any provision of law, may be appealed to a judge of the district court by filing a nohce of appeal within 15 days after entry of the decision or order, provided the parties ha\e elected to appeal to a judge of the district court under Rule 73(d). An appeal of such interlocutory decision or order shall not stay the proceedings before the magis- trate unless the magistrate or judge shall so order. Upon a showing of excusable neglect, the magistrate may extend the time for filing a notice of appeal upon motion filed not later than 20 days after the expiration of the time otherwise prescribed b\ this rule. (b) Notice of .Appeal; Service. The notice of appeal shall specify' the party or parties taking the appeal, designate the judgment, order or part thereof ap- pealed from, and state that the appeal is to a judge of the district court. The clerk shall mail copies of the notice to all other parties and note the date of mailing in the ci\il docket. 135 Rule 74 Federal Rules of Civil Procedure (c) Stay Pending Appeal. Upon a showing that the magistrate has refused or otherwise failed to stay the judgment pending appeal to the district judge under Rule 73(d), the appellant may make application for a stay to the district judge with reasonable notice to all parties. The stay may be conditioned upon the filing in the district court of a bond or other appropriate security. (d) Dismissal. For failure to comply with these rules or any local rule or order, the district judge may take such action as is deemed appropriate, includ- ing dismissal of the appeal. The district judge also may dismiss the appeal upon the filing of a stipulation signed by all parties, or upon motion and notice by the appellant. Added Apr. 28, 1983, eff. Aug. 1983. Advisory Committee Note Subdivision (a). This rule governs appeals from decisions of magistrates exer- cising consensual ci\il jurisdiction under Rule 73 when the parties elect to appeal to a judge of the district court under subdivision (d) of that rule. Congress specified that such an appeal would be "on the record to a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals." See 28 U.S.C. S636(c)(4). Presumably, Congress intended that the district court follow the same general procedures, including the "clearly erroneous" factual review standard of Civil Rule 52(a), that a court of appeals follows in reviewing a judgment of the district court. However, Congress also provided that "whenever possible" the local rules of the district court shall en- deavor to make appeals expeditious and inexpensive. See 28 U.S.C. S636(c)(4). Since the Federal Rules of Appellate Procedure are designed to cover appeals from a single judge to a three-member appeal tribunal, some modifications have proved desirable in assuring an expeditious appeal from a magistrate to a single district judge. Rules 74 through 76 provide this set of rules governing appeals from magistrates' exercise of consensual jurisdiction. The time limits in subdivision (a) generally conform to those in Appellate Rule 4(a), except that the period in which a partv' may move for leave to file a late notice of appeal on grounds of excusable neglect is 20 days, rather than the 3()-day period provided for in the Appellate Rules. The term "appealable decision" as used in this rule embraces the "final deci- sion" concept of 28 U.S.C. S1291 and permits an appeal from a magistrate to a district judge in those situations in which an appeal from a district judge to the court of appeals would lie. That term, along with the specific provision in the rule permitting appeals of certain interlocutor) orders, incorporates by reference the provisions of 28 U.S.C. S12'52 and adopts, by analogy to Section 1292(b), a certification procedure for otherwise unappealable orders "where the order is based on a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation." Although no specific certifi- cation procedure is set forth, the rule contemplates that a magistrate may certify such an order for appeal, and the district judge, in his discretion, may allow the appeal. In the interest of expediting the trial, interlocutory appeals of any kind 136 Federal Rules of Ci\il Procedure Rule 75 will not stay the proceedings unless the magistrate or district judge finds that the nature of the appeal or its relation to the remaining proceedings requires a stay. Subdivision (b). The provisions governing the content and service of the notice of appeal conform substantially to Rules 3(c) and 3(d) of the Federal Rules of Appellate Procedure. Subdivision (c). This subdivision represents a simplified version of Rule 8 of the Federal Rules of Appellate Procedure. Under this subdivision, the district judge is in the position of an appellate judge under Rule S of the .Appellate Rules when the judge below has refused a stay under Rule 62. In proceedings under 28 U.S.C. )i636(c), an application for a stay of the judgment under Rule 62 initially will be made to the magistrate. The district judge under this rule may hear an application for a stay of the judgment upon a showing that the magistrate has refused to stay the judgment pending appeal to the district judge. Subdivision (d). The provisions governing dismissal are similar to Rule 3(a) (failure to prosecute) and Rule 42(a) (voluntary dismissal) of the Federal Rules of Appellate Procedure. Rule 75. Proceedings on Appeal from Magistrate to District Judge under Rule 73(d) (a) Applicability. In proceedings under Title 28, U.S.C. |J636(c), when the parties have previously elected under Rule 73(d) to appeal to a district judge rather than to the court of appeals, this rule shall govern the proceedings on appeal. (b) Record on .\ppeal. (1) Composition. The original papers and exhibits filed with the clerk of the district court, the transcript of the proceedings, if any, and the docket entries shall constitute the record on appeal. In lieu of this record the parties, within 10 days after the filing of the notice of appeal, may file a joint statement of the case showing how the issues presented by the appeal arose and were decided by the magistrate, and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. (2) Transcript. Within 10 days after filing the notice of appeal the appellant shall make arrangements for the production of a transcript of such parts of the proceedings as he deems necessary. Unless the entire transcript is to be in- cluded, the appellant, within the time pro\ided above, shall serve on the appellee and file with the court a description of the parts of the transcript which he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessarv', within 10 days after the service of the 137 Rule 75 Federal Rules of Civil Procedure statement of the appellant, lie sliall serve on the appellant and file with the court a designation of additional parts to be included. The appellant shall promptly make arrangements for the inclusion of all such parts unless the magistrate, upon motion, exempts the appellant from providing certain parts, in which case the appellee may provide for their transcription. (3) Statement in Lieu of Transcript. If no record of the proceedings is available for transcription, the parties shall, within 10 days after the filing of the notice of appeal, file a statement of the evidence from the best a\ailable means to be submitted in lieu of the transcript. If the parties cannot agree they shall submit a statement of their differences to the magistrate for settlement. (c) Time for Filing Briefs. Unless a local rule or court order otherwise provides, the following time limits for filing briefs shall apply. (1) The appellant shall serve and file his brief within 20 days after the filing of the transcript, statement of the case, or statement of the evidence. (2) The appellee shall serve and file his brief v\ithin 20 days after ser\ice of the brief of the appellant. (3) The appellant may serve and file a reply brief within 10 days after service of the brief of the appellee. (4) If the appellee has filed a cross-appeal, he may file a reply brief limited to the issues on the cross-appeal within 10 days after service of the reply brief of the appellant. (d) Length and Form of Briefs. Briefs may be typewritten. The length and form of briefs shall be governed b\' local rule. (e) Oral Argument. The opportunit\- for the parties to be heard on oral argument shall be governed by local rule. Added Apr. 28, 1983, eff, Aug. 1, 1983. Advisory Committee Notes Subdivision (a). 28 U.S.C. S636(c)(4) provides that whenever possible the local rules of the district court shall endeavor to make appeals from the magistrate to the district judge expeditious and inexpensive. The provisions of this rule are directed to that end in simplifying the record on appeal and permitting hpewrit- ten briefs. The availability of oral argument and the length and form of briefs are matters appropriately left to local rule. Subdivision (b). Ilie prov isions governing the composition of the record and the transcript are adapted from Rule 10 of the Federal Rules of Appellate Proce- dure. The language requiring the appellant to "make arrangements for the pro- duction of a transcript" is broad enough to require the partv' to order a transcript from the court reporter or to make arrangements to transcribe a taped record of the proceedings. The magistrate is to settle any differences regarding the extent of 138 Federal Rules of Civil Procedure Rule 76 the transcript and to require the appellant to provide for transcription of any additional portions designated by the appellee that are material to the issues on appeal. Naturally, the rule is subject to the operation of 28 U.S.C. !il915 in the case of a party who is unable to pay such costs. Although it is not anticipated that an appeal will often be taken from a hearing or trial of which no record was made, the parties do ha\e the option to forego a record in routine matters under 28 U.S.C. ;i636(c)(7). In such cases a statement of the e\ idence will be prepared by the parties (or by the magistrate if the parties cannot agree) from the best available means, including the recollections and notes of the parties and the magistrate. Subdivision (c). Although the parties, with agreement of the court, can dis- pense with the filing of briefs, a schedule for the serving and filing of briefs will often be necessary . In lieu of the elaborate provisions of Rules 28 through 32 of the Federal Rules of Appellate Procedure, this rule adopts a simplified approach for the filing and ser\ ing of briefs in order to achie\e an inexpensive and expedi- tious appeal from a magistrate's judgment to a district judge. The Hming of the appellant's initial brief is tied to the filing of the transcript or statement, instead of the filing of the record (Appellate Rule 31(a)) or the docketing of the appeal, because the rest of the record is already in the hands of the district court clerk and need not be transmitted. This rule does not require payment of a filing fee. Thus the filing of the ttanscript or statement is all that remains of the traditional concepts of filing the record and docketing the appeal. The introducton clause of the rule recognizes the desirability of allowing local and individual variations in the filing of briefs, and the numbered clauses pre- scribe shorter periods than the corresponding intervals allowed by Appellate Rule 31(a). The provision allowing a reply brief for an appellee who has filed a cross-appeal is taken from Appellate Rule 28(c). Subdivision (d). The use of tvpewritten briefs is urged as a means of minimizing costs and of exp>editing appeals from the magistrate to the disttict judge. The form and length of briefs should be addressed as a matter of local rule in order to avoid resort to the more elaborate provisions of the Federal Rules of .\ppellate Procedure. Subdivision (e). The availabilit>' of oral argument has been left as a matter for local rule. Rule 76. Judgment of the District Judge on the Appeal under Rule 73(d) and Costs (a) Entn- of Judgment. When the parties have elected under Rule 73(d) to appeal from a judgment of the magistrate to a district judge, the clerk shall prepare, sign, and enter judgment in accordance with the order or decision of the district judge following an appeal from a judgment of the magistrate, unless the district judge directs otherwise. The clerk shall mail to all parties a copy of the order or decision of the district judge. 139 Rule 76 Federal Rules of Civil Procedure (b) Stay of Judgments. The decision of the district judge shall be stajed for 10 days during which time a party may petition the district judge for rehearing, and a timely petition shall stay the decision of the district judge pending disposition of a petition for rehearing. Upon the motion of a parts, the decision of the district judge may be stayed in order to allow a party to petition the court of appeals for leave to appeal. (c) Costs. Except as otherwise provided by law or ordered by the district judge, costs shall be taxed against the losing party; if a judgment of the magis- trate is affirmed in part or reversed in part, or is vacated, costs shall be allowed only as ordered by the district judge. The cost of the transcript, if necessary for the determination of the appeal, and the premiums paid for bonds to preserve rights pending appeal shall be taxed as costs by the clerk. Added Apr. 28, 198B. eff. Aug. 1, 1983. Advisory Committee Notes Subdivision (a). This subdivision, adapted from Rule 36 of the Federal Rules of Appellate Procedure, directs the clerk to enter judgment in accordance with the order or decision of the district judge affirming, reversing, or modif>'ing the judgment of the magistrate and to mail copies of the order or decision to all parties. Subdivision (b). This subdivision, adapted from Rule 41 of the Federal Rules of Appellate Procedure, stays the effect of the district judge's decision on an appeal from a judgment of the magistrate. The availabilit> of a rehearing by the district judge is contemplated (see Appellate Rule 40), but no particular form of petition is specified by the rule. The initial 10-day stay and the stay pending disposition of a timely petition for rehearing operate automatically upon the magistrate and all parties. Any other stay is at the discretion of the district judge. Subdivision (c). This provision for costs on appeal is adapted from Rule 39 of the Federal Rules of Appellate Procedure to achieve the inexpensive appellate process envisioned for district judge re\iew of magistrate action. No filing fee is required since a single clerk's office handles the file throughout, and no bond for costs is required. Ordinarily the only costs will be the costs of the transcript and the premium for any supersedeas bond. X. District Courts and Clerks Rule 77. District Courts and Clerks (a) District Courts Always Open. The district courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and 140 Federal Rules of Civil Procedure Rule 78 returning mesne and final process, and of making and directing all interlocu- tory motions, orders, and rules. (b) Trials and Hearings; Orders in Chambers. All trials upon the merits shall be conducted in open court and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in cham- bers, without the attendance of the clerk or other court officials and at any place either within or without the district; but no hearing, other than one ex parte, shall be conducted outside the district without the consent of all parties affected thereby. (c) Clerk's Office and Orders by Clerk. The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays, but a district court may provide by local rule or order that its clerks office shall be open for specified hours on Saturdays or particular legal holidays other than New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. All motions and appli- cations in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, for entering defaults or judgments by default, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but his action may be suspended or altered or rescinded by the court upon cause shown. As amended Jan. 21, 1963, eff. Julv 1, 1963; Mar. 1, 1971, eff. July 1, 1971. (d) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall ser\'e a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner pro\ided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a partv' for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure. As amended Dec. 27. 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Dec. 4, 1967, eff. July 1, 1968. Rule 78. Motion Day Unless local conditions make it impracticable, each district court shall estab- lish regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be 141 Rule 78 Federal Rules of Civil Procedure heard and disposed of; but the judge at any time or place and on such notice, if any, as he considers reasonable may make orders for the advancement, con- duct, and hearing of actions. To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition. Rule 79. Books and Records Kept by the Clerk and Entries Therein (a) Civil Docket. The clerk shall keep a book known as "civil docket" of such form and style as may be prescribed by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, and shall enter therein each civil action to which these rules are made applicable. Actions shall be assigned consecutive file numbers. The file number of each action shall be noted on the folio of the docket whereon the first entry of the action is made. All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. When in an action trial by jury has been properly demanded or ordered the clerk shall enter the word "jury" on the folio assigned to that action. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963. (b) Civil Judgments and Orders. The clerk shall keep, in such form and manner as the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States may pre- scribe, a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the court may direct to be kept. As amended Dec' 27, 1946, eff. Mar. 19. 1948; Dec. 29. 1948, eff. Oct. 20, 1949. (c) Indices; Calendars. Suitable indices of the ci\il docket and of every civil judgment and order referred to in subdivision (b) of this rule shall be kept by the clerk under the direction of the court. There shall be prepared under the direction of the court calendars of all actions ready for trial, which shall distinguish "jury actions" from "court actions." As amended Dec. 27, 1946, eff. Mar. 19. 1948. 142 Federal Rules of Civil Procedure Rule 81 (d) Other Books and Records of the Clerk. The clerk shall also keep such other books and records as may be required from time to hme by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949. Rule 80. Stenographer; Stenographic Report or Transcript as Evidence (a) Stenographer. Abrogated Dec. 27, 1946, eff. Mar. 19, 1948. (b) Official Stenographer. Abrogated Dec. 27, 1946, eff. Mar. 19, 1948. (c) Stenographic Report or Transcript as Evidence. Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissi- ble in evidence at a later trial, it ma>- be pro\ed by the transcript thereof duly certified bv the person who reported the testimony. As amended Dec. 27, 1946, eff. Mar. 19, 1948. XI. General Provisions Rule 81. ApphcabiHty in General (a) To What Proceedings Applicable. (1) These rules do not apply to prize proceedings in admiralty governed by Title 10, U.S.C. SS7651-7681. They do not apply to proceedings in bank- ruptcy or proceedings in copyright under Title 17, U.S.C, except in so far as they may be made applicable thereto by rules promulgated by Supreme Court of the United States. They do not apply to mental health proceedings in the United States District Court for the District of Columbia. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968. (2) These rules are applicable to proceedings for admission to citizenship, habeas corpus, and quo warranto, to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice m civil actions. The writ of habeas corpus, or order to show cause, shall be directed to the person having custody of the person detained. It shall be returned within 3 days unless for good cause shown additional time is allowed which in cases brought under 28 U.S.C. ^2254 shall not exceed 40 davs, and in all other cases shall not exceed 20 days. As amended Dec. 27, 1946, eff Mar. 19. 1948; Dec. 29, 1948, eff Oct. 20, 143 Rule 81 Federal Rules of Civil Procedure 1949; Feb. 28, 1966, eff. Julv 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 1, 1971, eff. July 1, 1971. (3) In proceedings under Title 9, U.S.C., relating to arbitration, or under the Act of May 20, 1926. ch. 347, S9 (44 Stat. 585), U.S.C, Title 45, S159, relating to boards of arbitration of railway labor disputes, these rules apply only to the extent that matters of procedure are not provided for in those statutes. These rules apply to proceedings to compel the giving of testimony or produc- tion of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of the United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968. (4) These rules do not alter the method prescribed by the Act of February 18, 1922, c. 57, ^2 (42 Stat. 388), U.S.C, Title 7, )i292; or by the Act of June 10, 1930, c. 436, P (46 Stat. 534), as amended, U.S.C, Title 7, !i499g(c), for instituting proceedings in the United States district courts to review orders of the Secretary of Agriculture; or prescribed by the Act of June 25, 1934, c. 742, S2 (48 Stat. 1214), U.S.C, Title 15, )i522, for instituting proceedings to review orders of the Secretary of the Interior; or prescribed by the Act of February 22, 1935, c. 18, S5 (49 Stat. 31), U.S.C, Title 15, S715d(c), as extended, for instituting proceedings to review orders of petroleum control boards; but the conduct of such proceedings in the district courts shall be made to conform to these rules as far as applicable. As amended Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963. (5) These rules do not alter the practice in the United States district courts prescribed in the Act of July 5, 1935, c. 372, ^^9 and 10 (49 Stat. 453), as amended, U.S.C, Title 29, 1^^159 and 160, for beginning and conducting proceedings to enforce orders of the National Labor Relations Board; and in respects not covered by those statutes, the practice in the district courts shall conform to these rules so far as applicable. As amended Dec. 29, 1948, eff. Oct. 20, 1949. (6) These rules apply to proceedings for enforcement or review of compensa- tion orders under the Longshoremen's and Harbor Workers' Compensation Act. Act of March 4, 1927, c. 509, )iS18, 21 (44 Stat. 1434, 1436), as amended, U.S.C, Title 33, ^S'^IS, 921, except to the extent that matters of procedure are provided for in that Act. The provisions for service by publica- tion and for answer in proceedings to cancel certificates of citizenship under the Act of June 27, 1952, c. 477, Title III, c. 2, $340 (66 Stat. 260), U.S.C, Title 8, S1451, remain in effect. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963. (7) Abrogated, Apr. 30, 1951, eff. Aug. 1, 1951. 144 Federal Rules of Civil Procedure Rule 81 (b) Scire Facias and Mandamus. The writs of scire facias and mandamus are abolished. Relief heretofore available by mandamus or scire facias may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules. (c) Removed Actions. These rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal. Repleading is not necessary unless the court so orders. In a removed action in which the defendant has not answered, he shall answer or present the other defenses or objections available to him under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whiche\er period is longest. If at the time of remo\ai all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it, if his demand therefor is ser\ed within 10 days after the petition for removal is filed if he is the petitioner, or if he is not the petitioner v\ithin 10 days after senice on him of the notice of filing the petition. A party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal. If state law applicable in the court from which the case is remo\ed does not require the parties to make express demands in order to claim trial by jury, they need not make demands after removal unless the court directs that they do so within a specified time if they desire to claim trial by jury. The court mav make this direction on its own motion and shall do so as a matter of course at the request of any party. The failure of a party to make demand as directed constitutes a waiver bv him of trial b\ jun . As amended Dec. 27, 1946, eft". Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963. (d) District of Columbia; Courts and Judges. Abrogated Dec. 29, 1948, eff. Oct. 20, 1949. (e) Law Applicable. Whenever in these rules the law of the state in which the district court is held is made applicable, the law applied in the District of Columbia governs proceedings in the United States District Court for the District of Columbia. When the word "state" is used, it includes, if appropri- ate, the District of Columbia. When the term "statute of the United States" is used, it includes, so far as concerns proceedings in the United States District Court for the District of Columbia, any Act of Congress locally applicable to and in force in the District of Columbia. When the law of a state is referred to, the word "law" includes the statutes of that state and the state judicial decisions construing them. As amended Dec. 29, 1948, eff. Oct. 20, 1949. 145 Rule 81 Federal Rules of Civil Procedure (f) References to Officer of the United States. Under any rule in which reference is made to an officer or agency of the United States, the term "officer" includes a district director of internal revenue, a former district direc- tor or collector of internal revenue, or the personal representati\e of a deceased district director or collector of internal revenue. Added Dec. 27, 1946, eff. Mar. 19, 1948; as amended Jan. 21, 196?, eff. July 1, 1963. Rule 82. Jurisdiction and Venue Unaffected These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein. An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the purposes of Title 28. U.S.C. )iS1391-93, As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. Julv 1, 1966. Rule 83. Rules by District Courts Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the judicial council and the Adminis- trative Office of the United States Courts and be made available to the public. In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act. As amended Apr. 29, 1985, eff. Aug. 1, 1985. Advisory Committee Notes Rule 83, which has not been amended since the Federal Rules were promulgated in 1938, permits each district to adopt local rules not inconsistent with the Federal Rules by a majorit> of the judges. The only other requirement is that copies be furnished to the Supreme Court. The widespread adoption of local rules and the modest procedural prerequisites for their promulgation have led many commentators to question the soundness of the process as well as the validity of some rules. See 12 C. Wright & A. Miller, Federal Practice and Procedure; Ci\il S31S2, at 217 (1973); Caballero, Is There 146 Federal Rules of Civil Procedure Rule 86 an CKer-Exercise of Local Rule-Making Powers by the United States District Courts'. 24 Fed. Bar News 325 (1977). . . . The amended Rule attempts, without impairing the procedural \alidity of existing local rules, to enhance the local rulemaking process by requiring appro- priate public notice of proposed rules and an opportunity to comment on them, .although some district courts apparently consult the local bar before promulgat- ing rules, many do not. which has led to criticism of a process that has district judges consulting only with each other. See 12 C. Wright & A. Miller, supra, \3152, at 217; Blair, The New Local Rules for Federal Practice in Iowa, 2? Drake L. Rev. 517 (1974). The new language subjects local rulemaking to scru- tiny similar to that accompanying the Federal Rules, administrative rulemaking, and legislation. It attempts to assure that the expert advice of practitioners and scholars is made available to the distiict court before local rules are promulgated. See Weinstein. Reform of Court Rule-Making Procedures 84-87, 127-B7, 151 (1977). . . . The exf)ectation is that the judicial council will examine all local rules, including those currendy in effect, with an eye toward determining whether they are valid and consistent with the Federal Rules, promote inter-district uniformity and efficiency, and do not undermine the basic objectives of the Federal Rules. . . . The practice pursued by some judges of issuing standing orders has been controversial, particularly among members of the practicing bar. The last sen- tence in Rule 83 has been amended to make certain that standing orders are not inconsistent with the Federal Rules or any local district court rules. Beyond that, it is hoped that each district will adopt procedures, perhaps by local rule, for promulgating and reviewing single-judge standing orders. Rule 84. Forms The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brev itv- of statement which the rules contemplate. As amended Dec. 27. 1946. eff. Mar. 19. 1948. Rule 85. Title These rules may be known and cited as the Federal Rules of Civil Procedure. Rule 86. Effective Date (a) [Effective date of original rules]. These rules will take effect on the day which is 5 months subsequent to the adjournment of the second regular session of the 75th Congress, but if that day is prior to September 1. 1938, then these rules will take effect on September 1. 1938. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions 147 Rule 86 Federal Rules of Civil Procedure then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies. (b) Effective Date of Amendments. The amendments adopted b>' the Su- preme Court on December 27, 1946, and transmitted to the Attorney Gen- eral on January 2, 1947, shall take effect on the day which is three months subsequent to the adjournment of the first regular session of the 80th Con- gress, but, if that day is prior to September 1, 1947, then these amendments shall take effect on September 1, 1947. They govern all proceedings in ac- tions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. Added Dec. 27, 1946, eff. Mar. 19, 1948. (c) Effective Date of Amendments. The amendments adopted by the Su- preme Court on December 29, 1948, and transmitted to the Attorney General on December 31, 1948, shall take effect on the day following the adjournment of the first regular session of the 81st Congress. Added Dec. 29, 1948, eff. Oct. 20, 1949. (d) Effective Date of Amendments. The amendments adopted by the Su- preme Court on April 17, 1961, and transmitted to the Congress on April 18, 1961, shall take effect on July 19, 1961. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies. Added Apr. 17, 1961, eff. July 19, 1961. (e) Effective Date of Amendments. The amendments adopted b\' the Su- preme Court on January 21, 1965, and transmitted to the Congress on January 21, 1963 shall take effect on July 1, 1963. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which e\ent the former procedure applies. Added Jan. 21, 1963, eff July 1, 1963. [The practice of amending Rule 86 to show effectixe times of amendments was discontinued after the 1963 amendments. Adoption and effecti\e dates of subsequent amendments are shown after the relevant change in the rule.] 148 APPENDIX OF FORMS (See Rule 84) TABLE OF FORMS Form 1. Summons. 2. Allegation of Jurisdiction 3. Complaint on a Promissor. Note. 4. Complaint on an Account 5. Complamt for Goods Sold and Delivered. 6. Complaint for Money Lent 7. Complaint for Money Paid by Mistake. 8. Complaint for Money Had and Received 9. Complaint for Negligence. 10. Complaint for Negligence Where Plaintiff Is Unable to Determine Definitely Whether the Person Responsible Is CD. or E.F. or Whether Both Are Responsible and Where His Evidence May justify a Finding of Wilfulness or of Recklessness or of Negligence 11. Complaint for Conversion. 1 2. Complaint for Specific Performance of Contract to Convey Land. 13 Complaint on Claim for Debt and to Set Aside Fraudulent Conveyance under Rule 18(b). 14 Complaint for Negligence under Federal Employers' Liabilitv' Act. 15. Complaint for Damages under Merchant Marine Act. 16 Complaint for Infringement of Patent. 17 Complaint for Infringement of Copyright and Unfair Competition 18 Complaint for Interpleader and Declaratory Relief IS-A, Notice and Acknowledgment for Senice by Mail. 19. Motion to Dismiss. Presenting Defenses of Failure to State a Claim, of Lack of Service of Process, of Improper Venue, and of Lack of Jurisdiction under Rule 12(b). 20. Answer Presenting Defenses under Rule 12(b) 21 Answer to Complaint Set Forth in Form 8, with Counterclaim for Interpleader. 22-A. Summons and Complaint Against Third-Party Defendant. 22-B. Motion to Bring in Third-Party Defendant 23. Motion to Intervene as a Defendant under Rule 24. 24. Request for Production of Documents, etc., under Rule 34. 25. Request for Admission under Rule 36. 26. Allegation of Reason for Omitting Party. 27. Notice of Appeal to Court of Appeals under Rule 73(b). Abrogated Dec. 4. 1967, effec- tive July 1, 1968. 28. Notice: Condemnation 29. Complaint: Condemnation. 30. Suggestion of Death upon the Record under Rule 25(a)(1). 3 1 . Judgment on Jury Verdict. 32. Judgment on Decision by the Court 33. Notice of Right To Consent to the Exercise of Civil Jurisdiction by a Magistrate and Appeal Option 34. Consent To Proceed Before a United States Magistrate, Election of Appeal to District Judge, and Order of Reference 149 Form 1 Appendix of Forms Introductory Statement 1. The following forms are intended for illustration only. They are limited in number. No attempt is made to furnish a manual of forms. Each form assumes the action to be brought in the Southern District of New York. If the district in which an action is brought has divisions, the division should be indicated in the caption. 2. Except where otherwise indicated each pleading, motion, and other paper should have a caption similar to that of the summons, with the designation of the particular paper substituted for the word "Summons". In the caption of the summons and in the caption of the complaint ail parties must be named but in other pleadings and papers, it is sufficient to state the name of the first party on either side, with an appropriate indication of other parties. See Rules 4(b), 7(b) (2), and 10(a). 3. In Form 3 and the forms following, the words, "Allegation of jurisdic- tion," are used to indicate the appropriate allegation in Form 2. 4. Each pleading, motion, and other paper is to be signed in his individual name by at least one attorney of record (Rule 1 1). The attorney's name is to be followed by his address as indicated in Form 3. In forms following Form 3 the signature and address are not indicated. 5. If a party is not represented by an attorney, the signature and address of the party are required in place of those of the attorney. Form 1. Summons United States District Court for the Southern District of New York Civil Action, File Number A. B., Plaintiff V. SUMMONS C. D., Defendant To the above-named Defendant: You are hereby summoned and required to serve upon plain- tiff's attorney, whose address is , an answer to the complaint which is herewith served upon you, within 20' days after service of this sum- 1 . If the United States or an officer or agency thereof is a defendant, the time to be inserted as to it is 60 days. 150 Appendix of Foims Form 2 mons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. Clerk of Court [Seal of the U.S. District Court] Dated As amended Dec. 29, 1948, eff. Oct. 20, 1949. (This summons is issued pursuant to Rule 4 of the Federal Rules of Civil Procedure.) Form 2. Allegation of Jurisdiction (a) Jurisdiction founded on diversity of citizenship and amount. Plaintiff is a [citizen of the State of Connecticut]" [corporation incorporated under the laws of the State of Connecticut having its principal place of business in the State of Connecticut] and defendant is a corporation incorporated under the laws of the State of New York having its principal place of business in a State other than the State of Connecticut. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars. (b) Jurisdiction founded on the existence of a Federal question and amount in controversy. This action arises under [the Constitution of the United States, Article , Section ]; [the Amendment to the Constitution of the United States, Section ]; [the Act of , Stat. ; U.S.C, Title , $ ]; [the Treaty of the United States (here describe the treaty)],' as hereinafter more fully appears. The matter in controversy exceeds, exclusive of interest and costs, the sum of ten thousand dollars. (c) Jurisdiction founded on the existence of a question arising under particu- lar statutes. The action arises under the Act of , Stat. ; U.S.C, Title , I , as hereinafter more fully appears. (d) Jurisdiction founded on the admiralty or maritime character of the claim. This is a case of admiralty and maritime jurisdiction, as hereinafter more 2. Form for natural person. 3 Use ttie appropriate phrase or phrases The general allegation of the existence of a Federal question is ineffective unless the matters constituting the claim for relief as set forth in the complaint raise a Federal question. 151 Form 2 Appendix of Fonns fully appears. [If the pleader wishes to invoke the distinctively maritime proce- dures referred to in Rule 9(h), add the following or its substantial equi\alent: This is an admiralty or maritime claim within the meaning of Rule 9(h).] As amended April 17, 1961, eff July 19, 1961; Feb. 28, 1966, eff. July 1. 1966. Form 3. Complaint on a Promissory Note 1. Allegation of jurisdiction. 2. Defendant on or about June 1, 1935, executed and delivered to plaintiff a promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto annexed as Exhibit A]; [whereby defen- dant promised to pay to plaintiff or order on June 1, 1936 the sum of dollars with interest thereon at the rate of six percent, per annum]. 3. Defendant owes to plaintiff the amount of said note and interest. Wherefore plaintiff demands judgment against defendant for the sum of dollars, interest, and costs. Signed: Attorney for Plaintiff Address: As amended Jan. 21, 1963, eff. July 1, 1963. Form 4. Complaint on an Account 1. Allegation of jurisdiction. 2. Defendant owes plaintiff dollars according to the account hereto annexed as Exhibit A. Wherefore (etc. as in Form 3). As amended Jan. 21, 1963, eff. July 1, 1963. Form 5. Complaint for Goods Sold and Delivered 1. Allegation of jurisdiction. 2. Defendant owes plaintiff dollars for goods sold and delivered by plaintiff to defendant between June 1, 1936 and December 1, 1936. Wherefore (etc. as in Form 3). As amended Jan. 21, 1963, eff. July 1, 1963. 152 Appendix of Forms Form 9 Form 6. Complaint for Money Lent 1. Allegation of jurisdiction. 2. Defendant owes plaintiff dollars for money lent by plaintiff to defendant on June 1, 1936. Wherefore (etc. as in Form 3). As amended Jan. 21, 1963, eff. July 1, 1963. Form 7. Complaint for Money Paid by Mistake 1. Allegation of jurisdiction. 2. Defendant owes plaintiff dollars for money paid b>' plaintiff to defendant by mistake on June 1, 1936, under the following circumstances: [here state the circumstances with particularity — see Rule 9(b).]. Wherefore (etc. as in Form 3). As amended Jan. 21, 1963. eff. July 1, 1963. Form 8. Complaint for Money Had and Received 1. Allegation of jurisdiction. 2. Defendant owes plaintiff dollars for money had and received from one G. H. on June 1, 1936, to be paid by defendant to plaintiff. Wherefore (etc. as in Form 3). As amended Jan. 21, 1963, eff. July 1, 1963. Form 9. Complaint for Negligence 1. Allegation of jurisdiction. 2. On June 1, 1936, in a public highway called Boylston Street in Boston. Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway. 3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was pre\ented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. As amended Jan. 21, 1963, eff. July 1, 1963. 153 Form 10 Appendix of Forms Form 10. Complaint for Negligence Where Plaintiff Is Unable to Determine Definitely Whether the Person Responsible Is C. D. or E. F. or Whether Both Are Responsible and Where His Evidence May Justify a Finding of Wilfulness or of Recklessness or of Negligence A. B., Plaintiff V. COMPLAINT C. D. and E. F. , Defendants 1. Allegation of jurisdiction. 2. On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant C. D. or defendant E. V., or both defendants C. D. and E. F. wilfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said highway. 3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was presented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars. Wherefore plaintiff demands judgment against C. D. or against E. F. or against both in the sum of dollars and costs. As amended Jan. 21, 1963, eff. July 1, 1963. Form 1 1 . Complaint for Conversion 1. Allegation of jurisdiction. 2. On or about December 1, 1936, defendant converted to his own use ten bonds of the Company (here insert brief identification as b\ num- ber and issue) of the value of dollars, the property of plaintiff. Wherefore plaintiff demands judgment against defendant in the sum of dollars, interest, and costs. As amended Jan. 21, 1963, cff. July 1. 1963. Form 12. Complaint for Specific Performance of Contract to Convey Land 1. Allegation of jurisdiction. 2. On or about December 1, 1936, plaintiff and defendant entered into an agreement in writing a copy of which is hereto annexed as Exhibit A. 154 Appendix of Forms Form 1 3 3. In accord with the provisions of said agreement plaintiff tendered to defendant the purchase price and requested a conveyance of the land, but defendant refused to accept the tender and refused to make the conveyance. 4. Plaintiff now offers to pay the purchase price. Wherefore plaintiff demands (1) that defendant be required specifically to perform said agreement, (2) damages in the sum of one thousand dollars, and (3) that if specific performance is not granted plaintiff have judgment against defendant in the sum of dollars. As amended Jan. 21, 1963, cff. July 1, 1963. Form 13. Complaint on Claim for Debt and to Set Aside Fraudulent Conveyance under Rule 18(b) A. B., Plaintiff V. COMPLAINT C. D. and E. F., Defendants 1. Allegation of jurisdiction. 2. Defendant C. D. on or about executed and delivered to plaintiff a promissory note [in the following words and figures: (here set out the note verbatim)]; [a copy of which is hereto annexed as Exhibit A]; [whereby defendant C. D. promised to pay to plaintiff or order on the sum of five thousand dollars with interest thereon at the rate of percent, per annum]. 3. Defendant C. D. owes to plaintiff the amount of said note and interest. 4. Defendant C. D. on or about conveyed all his property, real and personal [or specify and describe] to defendant E. F. for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebted- ness evidenced by the note above referred to. Wherefore plaintiff demands; (1) That plaintiff have judgment against defendant C. D. for dol- lars and interest; (2) that the aforesaid conveyance to defendant E. F. be declared void and the judgment herein be declared a lien on said property; (3) that plaintiff have judgment against the defendants for costs. As amended Jan. 21, 1963, eff. July 1, 1963. 155 Form 14 Appendix of Forms Form 14. Complaint for Negligence under Federal Employers' Liability Act 1. Allegation of jurisdiction. 2. During all the times herein mentioned defendant owned and operated in interstate commerce a railroad which passed through a tunnel located at and known as Tunnel No. . 3. On or about June 1, 1936, defendant was repairing and enlarging the tunnel in order to protect interstate trains and passengers and freight from injury and in order to make the tunnel more conveniently usable for interstate commerce. 4. In the course of thus repairing and enlarging the tunnel on said day defendant employed plaintiff as one of its workmen, and negligently put plain- tiff to work in a portion of the tunnel which defendant had left unprotected and unsupported. 5. By reason of defendant's negligence in thus putting plaintiff to work in that portion of the tunnel, plaintiff was, while so working pursuant to defen- dant's orders, struck and crushed by a rock, which fell from the unsupported portion of the tunnel, and was (here describe plaintiffs injuries). 6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually earning dollars per day. By these injuries he has been made incapable of any gainful activity', has suffered great physical and mental pain, and has incurred expense in the amount of dollars for medicine, medical attendance, and hospitalization. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. Form 15. Complaint for Damages under Merchant Marine Act 1. Allegation of jurisdiction. [If the pleader wishes to invoke the distinctively maritime procedures referred to in Rule 9(h), add the following or its substan- tial equivalent: This is an admiralty or maritime claim within the meaning of Rule 9(h).] 2. During all the times herein mentioned defendant was the owner of the steamship and used it in the transportation of freight for hire by water in interstate and foreign commerce. 3. During the first part of (month and year) at plaintiff entered the employ of defendant as an able seaman on said steamship under seamen's articles of customar>' form for a \oyage from ports to the Orient and return at a wage of dollars per month and found, which is equal to a wage of dollars per month as a shore worker. 4. On June 1, 1936, said steamship was about days out of the port of and was being navigated by the master and crew on the return voyage of ports. (Here describe weather conditions and the condi- 156 Appendix of Forms Form 17 tion of the ship and state as in an ordinary complaint for personal injuries the negligent conduct of defendant. ) 5. By reason of defendant's negligence in thus (brief statement of defendant's negligent conduct) and the unseaworthiness of said steamship, plaintiff was (here describe plaintiff's injuries). 6. Prior to these injuries, plaintiff was a strong, able-bodied man, capable of earning and actually earning dollars per day. By these injuries he has been made incapable of any gainful activit)-; has suffered great physical and mental pain, and has incurred expense in the amount of dollars for medicine, medical attendance, and hospitalization. Wherefore plaintiff demands judgment against defendant in the sum of dollars and costs. As amended Feb. 28, 1966, eff. July 1, 1966. Form 16. Complaint for Infringement of Patent 1. Allegation of jurisdiction. 2. On May 16, 1934, United States Letters Patent No. were duly and legally issued to plaintiff for an invention in an electric motor; and since that date plaintiff has been and still is the owner of those Letters Patent. 3. Defendant has for a long time past been and still is infringing those Letters Patent by making, selling, and using electric motors embodying the patented invention, and will continue to do so unless enjoined by this court. 4. Plaintiff has placed the required statutory notice on all electric motors manufactured and sold by him under said Letters Patent, and has given written notice to defendant of his said infringement. Wherefore plaintiff demands a preliminary and final injunction against con- tinued infringement, an accounting for damages, and an assessment of interest and costs against defendant. As amended Jan. 21, 1965, eff. July 1, 1963. Form 17. Complaint for Infringement of Copyright and Unfair Competition 1. Allegation of jurisdiction. 2. Prior to March, 1936, plaintiff, who then was and ever since has been a citizen of the United States, created and wrote an original book, entitled 3. This book contains a large amount of material wholly original with plain- tiff and is copyrightable subject matter under the laws of the United States. 4. Between March 2, 1936, and March 10, 1936, plaintiff complied in all respects with the Act of (give citation) and all other laws governing copyright, 157 Form 17 Appendix of Forms and secured the exclusive rights and privileges in and to the copyright of said book, and received from the Register of Copyrights a certificate of registration, dated and identified as follows: "March 10, 1936, Class , No. " 5. Since March 10, 1936, said book has been published by plaintiff and all copies of it made by plaintiff or under his authority or license have been printed, bound, and published in strict conformity with the provisions of the Act of and all other laws governing copyright. 6. Since March 10, 1936, plaintiff has been and still is the sole proprietor of all rights, title, and interest in and to the copyright in said book. 7. After March 10, 1936, defendant infringed said copyright by publishing and placing upon the market a book entitled , which was copied largely from plaintiffs copyrighted book, entitled 8. A copy of plaintiffs copyrighted book is hereto attached as "Exhibit 1"; and a copy of defendant's infringing book is hereto attached as "Exhibit 2." 9. Plaintiff has notified defendant that defendant has infringed the copyright of plaintiff, and defendant has continued to infringe the copyright. 10. After March 10, 1936, and continuously since about , de- fendant has been publishing, selling and otherwise marketing the book entitled , and has thereby been engaging in unfair trade practices and unfair competition against plaintiff to plaintiffs irreparable damage. Wherefore plaintiff demands: (1) That defendant, his agents, and servants be enjoined during the pen- dency of this action and permanently from infringing said copyright of said plaintiff in any manner, and from publishing, selling, marketing or otherwise disposing of any copies of the book entitled (2) That defendant be required to pay to plaintiff such damages as plaintiff has sustained in consequence of defendant's infringement of said copyright and said unfair trade practices and unfair competition and to account for (a) all gains, profits and advantages derived by defendant by said trade prac- tices and unfair competition and (b) all gains, profits, and advantages derived by defendant by his infringe- ment of plaintiffs copyright or such damages as to the court shall appear proper within the provisions of the copyright statutes, but not less than two hundred and fifty dollars. (3) That defendant be required to deliver up to be impounded during the pendency of this action all copies of said book entitled in his possession or under his control and to deliver up for destruction all infringing copies and all plates, molds, and other matter for making such infringing copies. (4) That defendant pay to plaintiff the costs of this action and reasonable attorney's fees to be allowed to the plaintiff by the court. (5) That plaintiff have such other and further relief as is just. As amended Dec. 27, 1946, eff Mar. 19, 1948. 158 Appendix of Forms Form 18 Form 18. Complaint for Interpleader and Declaratory Relief 1. Allegation of jurisdiction. 2. On or about June 1, 1935, plaintiff issued to G. H. a policy of life insurance whereby plaintiff promised to pay to K. L. as beneficiary the sum of dollars upon the death of G. H. The policy required the payment by G. H. of a stipulated premium on June 1, 1936, and annually thereafter as a condition precedent to its continuance in force. 3. No part of the premium due June 1, 1936, was ever paid and the policy ceased to have any force or effect on July 1, 1936. 4. Thereafter, on September 1, 1936, G. H. and K. L. died as the result of a collision between a locomotive and the automobile in which G. H. and K. L. were riding. 5. Defendant C. D. is the duly appointed and acting executor of the will of G. H.; defendant E. F. is the duly appointed and acting executor of the will of K. L.; defendant X. Y. claims to have been duly designated as beneficiary of said policy in place of K. L. 6. Each of defendants, C. D., E. F., and X. Y., is claiming that the above-mentioned policy was in full force and effect at the time of the death of G. H.; each of them is claiming to be the only person entitled to receive payment of the amount of the policy and has made demand for payment thereof 7. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as to which defendant is entitled to be paid the amount of the policy, if it was in force at the death of G. H. Wherefore plaintiff demands that the court adjudge: (1) That none of the defendants is entitled to recover from plaintiff the amount of said policy or any part thereof (2) That each of the defendants be restrained from instituting any action against plaintiff for the recovery of the amount of said policy or any part thereof. (3) That, if the court shall determine that said policy was in force at the death of G. H., the defendants be required to interplead and settle between themselves their rights to the money due under said policy, and that plaintiff be discharged from all liability in the premises except to the person whom the court shall adjudge entitled to the amount of said policy. (4) That plaintiff recover its costs. As amended Jan. 21, 1963, eff. July 1, 1963. 159 Form 18— A Appendix of Forms Form 18- A. Notice and Acknowledgment for Service by Mail United District Court for the Southern District of New York Civil Action, File Number A.B., Plaintiff NOTICE AND ACKNOWLEDGMENT OF V. RECEIPT OF SUMMONS CD, Defendant AND COMPLAINT Notice To: (Insert the name and address of the person to be served.) The enclosed summons and complaint are served pursuant to Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure. You must complete the acknowledgment part of this form and return one copy of the completed form to the sender within 20 days. You must sign and date the acknowledgment. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other en- tity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return the form to the sender within 20 days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons and complaint in any other manner permitted by law. If you do complete and return this form, you (or the party on whose behalf you are being served) must answer the complaint within 20 days. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. 1 declare, under penalty of perjurv", that this Notice and Acknowledgment of Receipt of Summons and Complaint will have been mailed on (insert date). Signature Date of Signature 160 Appendix of Forms Form 19 Acknowledgment of Receipt of Summons and Complaint I declare, under penalty- of perjury , that I received a copy of the summons and of the complaint in the above-captioned matter at (insert address) Signature Relationship to Entity/Authority to Re- ceive Service of Process Date of Signature Added April 28, 1982, eff. Feb. 26, 1983, as amended Apr. 29, 1985, eff. Aug. 1, 1985. Form 19. Motion to Dismiss, Presenting Defenses of Failure to State a Claim, of Lack of Senice of Process, of Improper Venue, and of Lack of Jurisdiction under Rule 12(b) TTie defendant moves the court as follows: 1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted. 2. To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds (a) that the defendant is a corporation organized under the laws of Delau are and was not and is not subject to service of process within the Southern District of New York, and (b) that the defendant has not been properly served with process in this action, all of which more clearly appears in the affidavits of M. N. and X. Y. hereto annexed as Exhibit A and Exhibit B respectively. 3. To dismiss the action on the ground that it is in the wrong district because (a) the jurisdiction of this court is invoked solely on the ground that the action arises under the Constitution and laws of the United States and (b) the defendant is a corporation incorporated under the laws of the State of Delaware and is not licensed to do or doing business in the Southern District of New York, all of which more clearly appears in the affida\its of K. L. and \'. W. hereto annexed as Exhibit C and D respectively. 161 Form 19 Appendix of Forms 4. To dismiss the action on the ground that the court lacks jurisdiction because the amount actually in controversy is less than ten thousand dollars exclusive of interest and costs. Signed: Attorney for Defendant Address: hlotice of Motion To: Attorney for Plaintiff Please take notice, that the undersigned will bring the above motion on for hearing before this Court at Room , United States Court House, Foley Square, City of New York, on the day of 193 , at 10 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard. Signed: Address: Attorney for Defendant As amended Dec. 29, 1948, eff. Oct. 20, 1949; April 17. 1961, eff. )ulv 19, 1961. Form 20. Answer Presenting Defenses under Rule 12(b) First Defense The complaint fails to state a claim against defendant upon which relief can be granted. Second Defense If defendant is indebted to plaintiffs for the goods mentioned in the com- plaint, he is indebted to them jointly with G. H. G. H. is alive; is a citizen of the State of New York and a resident of this district, is subject to the jurisdic- tion of this court, as to both service of process and venue; can be made a party without depriving this court of jurisdiction of the present parties, and has not been made a party. 162 Appendix of Fonns Form 2 1 Third Defense Defendant admits the allegation contained in paragraphs 1 and 4 of the com- plaint; alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the complaint; and denies each and e\er> other allegation contained in the complaint. Fourth Defense The right of action set forth in the complaint did not accrue within six years next before the commencement of this action. Counterclaim (Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in a complaint. No statement of the grounds on which the court's jurisdiction depends need be made unless the counterclaim requires indepen- dent grounds of jurisdiction.) Cross-Claim Against Defendant M. N. (Here set forth the claim constituting a cross-claim against defendant M. N. in the manner in which a claim is pleaded in a complaint. The statement of grounds upon which the court's jurisdiction depends need not be made unless the cross-claim requires independent grounds of jurisdiction.) Form 21. Answer to Complaint Set Forth in Form 8, with Counterclaim for Interpleader Defense Defendant admits the allegations stated in paragraph 1 of the complaint; and denies the allegations stated in paragraph 2 to the extent set forth in the counterclaim herein. Counterclaim for Interpleader 1. Defendant receixed the sum of dollars as a deposit from E. F. 2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of it which he claims to ha\e recei\ed from E. F. 3. E.F. has notified the defendant that he claims such deposit, that the purported assignment is not \alid, and that he holds the defendant responsible for the deposit. Wherefore defendant demands: ( 1 ) That the court order E. F. to be made a part> defendant to respond to the complaint and to this counterclaim.' 1 Rule Hi hi provides for the court ordering parties to a counterclaim, but who are not parties to the original action, to be brought in as defendants. 163 Form 21 Appendix of Fonns (2) That the court order the plaintiff and E. F. to interplead their respective claims. (3) That the court adjudge whether the plaintiff or E. F. is entitled to the sum of money. (4) That the court discharge defendant from all liability in the premises except to the person it shall adjudge entitled to the sum of money. (5) That the court award to the defendant its costs and attorney's fees. As amended Jan. 21, 1963, eff. July 1, 1963. Form 22-A. Summons and Complaint Against Third-Party Defen- dant United States District Court for the Southern District of New York Civil Action, File Number A. B., Plaintiff V. C. D., Defendant and Third-Part>' Plaintiff SUMMONS E. F., Third-Party Defendant To the above-named Third-Party Defendant: You are hereby summoned and required to serve upon , plain- tiffs attorney whose address is , and upon , who is attorney for C. D. , defendant and third-party plaintiff, and whose address is , an answer to the third-party complaint which is herewith served upon you within 20 days after the service of this summons upon you exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the third-party complaint. There is also served upon you herewith a copy of the complaint of the plaintiff which you may but are not required to answer. Clerk of Court [Seal of District Court] Dated 164 Appendix of Forms Form 22— B United States District Court for the Southern District of New York Civil Action, File Number A. B., Plaintiff V. C. D., Defendant and Third-Part\ Plaintiff THIRD-PART^' COMPLAINT E. F., Third-Part> Defendant 1. Plaintiff A. B. has filed against defendant C. D. a complaint, a copy of which is hereto attached as "Exhibit A." 2. (Here state the grounds upon which C. D. is entitled to recover from E. F. , all or part of what A. B. may recover from C. D. The statement should be framed as in an original complaint. ) Wherefore C. D. demands judgment against third-party defendant E. F. for all sums' that may be adjudged against defendant C. D. in favor of plaintiff A. B. Signed: Attorney for C. D. , Third-Party Plaintiff Address: Added Jan. 21, 1963, eff. July 1, 1963. Form 22-B. Motion to Bring in Third-Party Defendant Defendant mo\es for leave, as third-party plaintiff, to cause to be served upon E. F. a summons and third-party complaint, copies of which are hereto attached as Exhibit X. Signed: Attorney for Defendant C. D. Address: 1. Make appropriate change where C. D. is entitled to only partial recover\-o% er against E. F. 165 Fonn 22— B Appendix of Forms Notice of Motion (Contents the same as in Form 19. The notice should be addressed to all parties to the action.) EXHIBIT X (Contents the same as in Form 22- A.) Added Jan. 21, 1963, eff. July 1, 1963. Form 23. Motion to Intervene as a Defendant under Rule 24 (Based upon the complaint. Form 16) United States District Court for the Southern District of New York Civil Action, File Number A. B., plaintiff V. MOTION TO INTERVENE AS C. D., Defendant A DEFENDANT E. F., Applicant for Intervention E. F. moves for leave to intervene as a defendant in this action, in order to assert the defenses set forth in his proposed answer, of which a copy is hereto attached, on the ground that he is the manufacturer and vendor to the defen- dant, as well as to others, of the articles alleged in the complaint to be an infringement of plaintiff's patent, and as such has a defense to plaintiffs claim presenting both questions of law and of fact which are common to the main action.' Signed: Attorney for E. F. , Applicant for Inten^ention Address: 1. For other grounds of intentntion, either of right or in the discretion of the court, sec Rule 24(a) and (b). 166 Appendix of Forms Form 24 Notice of Motion (Contents the same as in Form 19) United States District Court for the Southern District of New York Civil Action, File Number A. B., Plaintiff V. INTERVENER'S ANSWER C. D., Defendant E. F. , Intervener First Defense Intervener admits the allegations stated in paragraphs I and 4 of the com- plaint; denies the allegations in paragraph 3, and denies the allegations in paragraph 2 in so far as they assert the legality' of the issuance of the Letters Patent to plaintiff. Second Defense Plaintiff is not the first inventor of the articles covered by the Letters Patent specified in his complaint, since articles substantially identical in character were previously patented in Letters Patent granted to intervener on January 5, 1920. Signed: Attorney for E. F., Inten'ener Address: As amended Dec. 29, 1948, eff Oct. 20, 1949. Form 24. Request for Production of Documents, etc. , under Rule 34 Plaintiff A. B. requests defendant C. D. to respond within days to the following requests: (1) That defendant produce and permit plaintiff to inspect and to copy each of the following documents: (Here list the documents either individually or by category and describe each of them.) 167 Form 24 Appendix of Forms (Here state the time, place, and manner of making the inspection and perfor- mance of any related acts.) (2) That defendant produce and permit plaintiff to inspect and to copy, test, or sample each of the following objects: (Here list the objects either individually or by category and describe each of them.) (Here state the time, place, and manner of making the inspection and perfor- mance of any related acts.) (3) That defendant permit plaintiff to enter (here describe property to be entered) and to inspect and to photograph, test or sample (here describe the portion of the real property and the objects to be inspected). (Here state the time, place, and manner of making the inspection and perfor- mance of any related acts.) Signed: Attorney for Plaintiff Address: As amended Mar. 50, 1970, eff. July 1, 1970. Form 25. Request for Admission under Rule 36 Plaintiff A. B. requests defendant C. D. within days after service of this request to make the following admissions for the purpose of this action only and subject to all pertinent objections to admissibility which may be interposed at the trial: 1. That each of the following documents, exhibited with this request, is genuine. (Here list the documents and describe each document.) 2. That each of the following statements is true. (Here list the statements.) Signed: Attorney for Plaintiff Address: As amended Dec. 27. 1946, eff. Mar. 19. 1948. Form 26. Allegation of Reason for Omitting Party When it is necessary, under Rule 19(c), for the pleader to set forth in his pleading the names of persons who ought to be made parties, but who are not so made, there should be an allegation such as the one set out below: 168 Appendix of Forms Form 28 John Doe named in this complaint is not made a party to this action [be- cause he is not subject to the jurisdiction of this court]; [because he cannot be made a party to this action without depriving this court of jurisdiction]. Form 27. Notice of Appeal to Court of Appeals under Rule 73(b) Abrogated Dec. 4, 1967, eff. July 1, 1968 Form 28. Notice: Condemnation United States District Court for the Southern District of New York Civil Action, File Number United States of America, Plaintiff 1,000 Acres of Land in [here insert a general location as "City of NOTICE " or "Countv of "1, John Doe, et al., and Unknown Owners, Defendants To (here insert the names of the defendants to whom the notice is directed): You are hereby notified that a complaint in condemnation has heretofore been filed in the office of the clerk of the United States District Court for the Southern District of New York, in the United States Court House in New York City, New York, for the taking (here state the interest to be acquired, as "an estate in fee simple") for use (here state briefly the use, "as a site for a post- office building") of the following described property in which you have or claim an interest. (Here insert brief description of the property in which the defendants to whom the notice is directed, have or claim an interest.) The authority for the taking is (here state briefly, as "the Act of , Stat , U.S.C.A., Title , S_ You are further notified that if you desire to present any objection or defense to the taking of your property you are required to serve your answer on the 1 . And where appropriate add a citation to any applicable Executive Order. 169 Form 28 Appendix of Forms plaintiffs attorney at the address herein designated within twenh' days after Your answer shall identify the property in which you claim to have an interest, state the nature and extent of the interest you claim, and state all of your objections and defenses to the taking of your property. All defenses and objections not so presented are waived. And in case of your failure so to answer the complaint, judgment of condemnation of that part of the above-described property in which you have or claim an interest will be rendered. But without answering, you may serve on the plaintiffs attorney a notice of appearance designating the property in which you claim to be interested. Thereafter you will receive notice of all proceedings affecting it. At the trial of the issue of just compensation, whether or not you have previously appeared or answered, you may present evidence as to the amount of the compensation to be paid for your property, and you may share in the distribution of the award. United States Attorney Address: (Here state an address within the district where the United States At- torney may be served, as "United States Court House, New York, N.Y.") Dated Added May 1, 1951, eff. Aug. 1, 1951. Form 29. Complaint: Condemnation United States District Court for the Southern District of New York Civil Action, File Number United States of America, Plaintiff 1,000 Acres of Land in [here insert a general location as "City of COMPLAINT " or "County of "], John Doe, et al., and Unknown Owners, Defendants 2. Here insert the words "personal service of thi,s notice upon you," if personal service is to be made pursuant to subdivision (d)(3)(i) of this rule [Rule 71A]; or, insert the date of the last publication of notice, if service by publication is to be made pursuant to subdivision (d)(3)(ii) of this rule. 170 Appendix of Forms Form 29 1. This is an action of a ci\il nature brought by the United States of Amer- ica for the taking of propert)' under the power of eminent domain and for the ascertainment and award of just compensation to the owners and parties in interest. ' 2. The authority' for the taking is (here state briefly, as "the Act of , Stat . U.S.C.A., Title S ").- 3. The use for which the property is to be taken is (here state briefly the use, "as a site for a post-office building"). 4. The interest to be acquired in the property is (here state the interest as "an estate in fee simple"). 5. The propertv- so to be taken is (here set forth a description of the property sufficient for its identification) or (described in Exhibit A hereto attached and made a part hereof). 6. The persons known to the plaintiff to ha\e or claim an interest in the projjerty' are: (Here set forth the names of such persons and the interests claimed.)^ 7. In addition to the persons named, there are or may be others who have or may claim some interest in the property to be taken, whose names are un- known to the plaintiff and on diligent inquiry have not been ascertained. They are made parties to the action under the designation "Unknown Owners." Wherefore the plaintiff demands judgment that the property be condemned and that just compensation for the taking be ascertained and awarded and for such other relief as may be lawful and proper. United States Attorney Address: (Here state an address within the district where the United States At- torney may be ser\ed, as "United States Court House, New York, N.Y.") Added May 1, 1951, eff. Aug. 1. 1951. 1. If the plaintiff is not the L'nited States, but is. for example, a corporation invoking the power of eminent domain delegated to it by the state, then this paragraph 1 of the complamt should be appropriately modified and should be preceded by a paragraph appropriately alleging federal juris- diction for the action, such as diversity. See Form 2. 2. And where appropriate add a citation to any applicable Executive Order 3. .^t the commencement of the action the plaintiff need name as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing invoK ing the compensation to be paid for a particular piece of propertv the plaintiff must add as defendants all persons having or claiming an interest in that propertv whose names can be ascertained bv an appropriate search of the records and also those whose names have otherwise been learned. See Rule '71.'\(c)(2). 4 The plaintiff should designate, as to each separate piece of property, the defendants who have been joined as owners thereof or of some interest therein. See Rule 71.'\(c)(2). 171 Form 30 Appendix of Forms Form 30. Suggestion of Death upon the Record under Rule 25(a)(1) A. B. [describe as a party, or as executor, administrator, or other representa- tive or successor of C. D., the deceased party] suggests upon the record, pursuant to Rule 25(a)(1), the death of C. D. [describe as party] during the pendency of this action. Added Jan. 21, 1963, eff. July 1, 1963. Form 3 1 . Judgment of Jury Verdict United States District Court for the Southern District of New York Civil Action, File Number A. B., Plaintiff V. JUDGMENT CD., Defendant This action came on for trial before the Court and a jury. Honorable John Marshall, District Judge, presiding, and the issues having been duly tried and the jury having duly rendered its verdict. It is Ordered and Adjudged [that the plaintiff A. B. recover of the defendant C. D. the sum of , with interest thereon at the rate of per cent as provided by law, and his costs of action.] [that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant C. D. recover of the plaintiff A. B. his costs of action.] Dated at New York, New York, this day of , 19 Clerk of Court Added Jan, 21, 1963, eff. July 1, 1963. 172 Appendix of Forms Form 33 Form 32. Judgment on Decision by the Court United States District Court for the Southern District of New York Civil Action, File Number A. B., Plaintiff V. JUDGMENT C. D.. Defendant This action came on for [trial] [hearing] before the Court, Honorable John Marshall, District Judge, presiding, and the issues having been duly [tried] [heard] and a decision having been duly rendered. It is Ordered and Adjudged [that the plamtiff A. B. recover of the defendant C. D. the sum of , with interest thereon at the rate of per cent as provided by law, and his costs of action.] [that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant C. D. recover of the plaintiff A. B. his costs of action.] Dated at New York, New York, this day of 19 — Clerk of Court Added Jan. 21, 1963, eff. July 1, 1963. Fomi 33. Notice of Right to Consent to the Exercise of Civil Juris- diction by a Magistrate and Appeal Option In accordance with the provisions of Title 28, U.S.C. S636(c), you are hereby notified that the United States magistrates of this district court, in addition to their other duties, upon the consent of all parties in a civil case, may conduct any or all proceedings in a civil case including a jur\' or nonjurv' trial, and order the entr>- of a final judgment. You should be aware that your decision to consent, or not to consent, to the referral of your case to a United States magistrate must be entirely voluntary. Only if all the parties to the case consent to the reference to a magistrate will either the judge or magistrate to whom the case has been assigned be informed of your decision. .\n appeal from a judgment entered by a magistrate may be taken directly to the United States court of appeals for this judicial circuit in the same manner 173 Form 3? Appendix of Forms as an appeal from any other judgment of a district court. Alternatively, upon consent of all parties, an appeal from a judgment entered by a magistrate may be taken directly to a district judge. Cases in which an appeal is taken to a district judge may be reviewed by the United States court of appeals for this judicial circuit only by way of petition for leave to appeal. Copies of the Form for the "Consent to Proceed Before a United States Magistrate" and "Election of Appeal to a District Judge" are available from the clerk of the court. Added Apr. 28, 1983, eff. Aug. 1, 1983. Form 34. Consent to Proceed Before a United States Magistrate, Election of Appeal to District Judge, and Order of Reference United States District Court for the District of Docket No. Plaintiff Defendant Consent to Proceed Before a United States Magistrate In accordance with the provisions of Title 28, U.S.C. !i636(c), the parties to the above-captioned civil matter hereby voluntarily waive their rights to pro- ceed before a judge of the United States district court and consent to have a United States magistrate conduct any and all further proceedings in the case, including trial, and order the entry of a final judgment. Date 174 Appendix of Forms Form 34 Election of Appeal to District Judge [Do not execute this portion of the Consent Form if the parties desire that the appeal lie directly to the court of appeals.] In accordance with the provisions of Title 28, U.S.C. S636(c)(4), the parties elect to take any appeal in this case to a district judge. Date Order of Reference IT IS HEREBY ORDERED that the above-captioned matter be referred to United States Magistrate for all further proceedings and the entry of judgment in accordance with Title 28, U.S.C. S636(c) and the foregoing consent of the parties. U.S. District Judge Note: Return this form to the Clerk of the Court only if all parties have consented to proceed before a magistrate. Added Apr. 28, 1983, eff. Aug. 1, 1983. 175 SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS Adopted February 28, 1966, effective July 1, 1966; as amended April 29, 1985; eff. August 1, 1985 TABLE OF RULES Rule A. Scope of Rules B. Attachment and Garnishment: Special Provisions ( 1 ) When Available; Complaint, Affidavit, and Process (2) Notice to Defendant (3) Answer (a) By Garnishee (b) By Defendant C. Actions in Rem: Special Provisions (1) When Available (2) Complaint (3) Judicial Authorization and Process (4) Notice (5) Ancillary Process (6) Claim and Answer; Interrogatories D. Possessory. Petitory, and Partition Actions E. Actions in Rem and Quasi in Rem: General Provisions (1) Applicability (2) Complaint; Security (a) Complaint (b) Security for Costs (3) Process (a) Territorial Limits of Effective Service (b) Issuance and Delivery (4) Execution of Process; Marshal's Return; Custody of Property (a) In General (b) Tangible Property (c) Intangible Property- id) Directions with Respect to Property in Custody (e) Expenses of Seizing and Keeping Property; Deposit (f) Procedures for Release from Arrest or Attachment (5) Release of Property (a) Special Bond (b) General Bond 177 Supplemental Rules (c) Release by Consent or Stipulation; Order of Court or Clerk; Costs (d) Possessory, Petitory, and Partition Actions (6) Reduction or Impairment of Security (7) Security on Counterclaim (8) Restricted Appearance (9) Disposition of Property; Sales (a) Actions for Forfeitures (b) Interlocutory Sales (c) Sales; Proceeds Limitation of Liability (1) Time for Filing Complaint; Security (2) Complaint (3) Claims against Owner; Injunction (4) Notice to Claimants (5) Claims and Answer (6) Information to Be Given Claimants (7) Insufficiency of Fund or Security (8) Objections to Claims: Distribution of Fund (9) Venue; Transfer Advisory Committee's Explanatory Statement to 1985 Amendments Since their promulgation in 1966, the Supplemental Rules for Certain Admi- ralt>' and Maritime Claims have preserved the special procedures of arrest and attachment unique to admiralty law. In recent years, however, these Rules have been challenged as violating the principles of procedural due process enunciated in the United States Supreme Court's decision in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), and later developed in Fuentes v. Shevin, 407 U.S. 67 (1972), Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). These Su- preme Court decisions provide five basic criteria for a constitutional seizure of property: (1) effective notice to persons having interests in the property seized, (2) judicial review prior to attachment, (3) avoidance of conclusorv' allegations in the complaint, (4) security posted by the plaintiff to protect the owner of the property under attachment, and (5) a meaningful and timely hearing after attachment. Several commentators have found the Supplemental Rules lacking on some or all five grounds. E.g., Batiza & Partridge. The Constitutional Challenge to Mari- time Seizures, 26 Loyola L. Rev. 203 (1980); Morse, The Conflict Between the Supreme Court Admiralty Rules and Sniadach-Fuentes: A Collision Course?, 3 Fla. St. L. Rev. 1 (1975). The federal courts have varied in their disposition of challenges to the Supplemental Rules. The Fourth and Fifth Circuits have both affirmed the constitutionality of Rule C. Amstar Corp. v. S/S Alexandros T., 664 F.2d 904 (4th Cir. 1981); Merchants National Bank v. The Dredge General G.L. Gillespie, 663 F.2d 1338 (5th Cir. 1981), cert, dismissed. 102 S. Ct. 2263 (1982). However, a district court in the Ninth Circuit found Rule C unconstitutional. Alyeska Pipeline Service Co. v. The Vessel Bay Ridge. 509 F. Supp. 1115 (D. Alaska 1981). appeal dismissed. 703 F.2d 38r(9th Cir. 1983). Rule B has re- 178 Supplemental Rules Rule B ceived similar inconsistent treatment in the district courts. Two district courts have found Rule B constitutionally deficient. Schiffahartsgesellschaft Leonhardt & Co. V. A. Bottacchi S.A. de Navegacion, 552 F. Supp. 771 (S.D. Ga. 1982); Grand Bahama Petroleum Co. \ . Canadian Transportation Agencies, Ltd. , 450 F. Supp. 447 (W.D. Wash. 1978). The constitutionality of both rules was ques- tioned in Techem Chemical Co. v. M/T Choyo Maru, 416 F. Supp. 960 (D. Md. 1976). Thus, there is uncertainty as to whether the current rules prescribe constitutionally sound procedures for guidance of courts and counsel. See gener- ally Note, Due Process in Admiralty .Arrest and Attachment, 56 Texas L. Rev. 1091 (1978). Due to the controversy and uncertainty that have surrounded the Supplemen- tal Rules, local admiralty bars and the Maritime Law Association of the United Staes have sought to strengthen the constitutionality of maritime arrest and at- tachment by encouraging promulgation of local admiralty rules providing for prompt post-seizure hearings. Some districts also adopted rules calling for judicial scrutiny of applications for arrest or attachment. Nonetheless, the result has been a lack of uniformity and continued concern over the constitutionality of the existing practice. The amendments that follow are intended to provide rules that meet the requirements prescribed by the Supreme Court and to develop unifor- mity in the admiralty practice. Rule A. Scope of Rules These Supplemental Rules apply to the procedure in admiraltv' and maritime claims within the meaning of Rule 9(h) with respect to the following remedies: (1) Maritime attachment and garnishment; (2) Actions in rem; (3) Possessory, petitorv-, and partition actions; (4) Actions for exoneration from or limitation of liability'. These rules also apply to the procedure in statuton,' condemnation proceed- ings analogous to maritime actions in rem, whether within the admiralty and maritime jurisdiction or not. Except as otherwise provided, references in these Supplemental Rules to actions in rem include such analogous statutory con- demnation proceedings. The general Rules of Civil Procedure for the United States District Courts are also applicable to the foregoing proceedings except to the extent that they are inconsistent with these Supplemental Rules. Rule B. Attachment and Garnishment: Special Provisions (1) When Available; Complaint, Affidavit, Judicial Authorization, and Process. With respect to any admiralty or maritime claim in personam a verified complaint may contain a prayer for process to attach the defendant's 179 Rule B Supplemental Rules goods and chattels, or credits and effects in the hands of garnishees named in the complaint to the amount sued for, if the defendant shall not be found within the district. Such a complaint shall be accompanied by an affidavit signed by the plaintiff or his attorney that, to the affiant's knowledge, or to the best of his information and belief, the defendant cannot be found within the district. The verified complaint and affidavit shall be reviewed by the court and, if the conditions set forth in this rule appear to exist, an order so stating and authorizing process of attachment and garnishment shall issue. Supplemental process enforcing the court's order may be issued by the clerk upon application without further order of the court. If the plaintiff or his attorney certifies that exigent circumstances make review by the court im- practicable, the clerk shall issue a summons and process of attachment and garnishment and the plaintiff shall have the burden on a post-attachment hearing under Rule E(4){f) to show that exigent circumstances existed. In addition, or in the alternative, the plaintiff may, pursuant to Rule 4(e), invoke the remedies provided by state law for attachment and garnishment or similar seizure of the defendant's property. Except for Rule E(8) these Supple- mental Rules do not apply to state remedies so invoked. As amended Apr. 29, 1985; eff. Aug. 1, 1985. (2) Notice to Defendant. No judgment by default shall be entered except upon proof, which may be by affidavit, (a) that the plaintiff or the garnishee has given notice of the action to the defendant by mailing to him a copy of the complaint, summons, and process of attachment or garnishment, using any form of mail requiring a return receipt, or (b) that the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4(d) or (i), or (c) that the plaintiff or the garnishee has made diligent efforts to give notice of the action to the defendant and has been unable to do so. (5) Answer. (a) By Garnishee. The garnishee shall serve his answer, together with answers to any interrogatories served with the complaint, within 20 days after service of process upon him. Interrogatories to the garnishee may be served with the complaint without leave of court. If the garnishee refuses or neglects to answer on oath as to the debts, credits, or effects of the defendant in his hands, or any interrogatories concerning such debts, credits, and effects that may be propounded by the plaintiff, the court may award compulsory process against him. If he admits any debts, credits, or effects, they shall be held in his hands or paid into the registry of the court, and shall be held in either case subject to the further order of the court. (b) By Defendant. The defendant shall serve his answer within 30 days after process has been executed, whether by attachment of property or service on the garnishee. 180 Supplemental Rules Rule C Advisory Committee Note to 1985 Amendment Rule B(l) has been amended to provide for judicial scrutiny before the issuance of any attachment or garnishment process. Its purpose is to eliminate doubts as to whether the rule is consistent with the principles of procedural due process enunciated by the Supreme Court in Sniadach v. Family Finance Corp., 595 U.S. 337 (1969), and later developed in Fuentes v. Shevin, 407 U.S. 67 (1972), Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). Such doubts were raised in Grand Bahama Petroleum Co. v. Canadian Transportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978), and Schiffahartsgesellschaft Leon- hardt & Co. v. A. Bottacchi S.A. de Navegacion, 552 F. Supp. 771 (S.D. Ga. 1982). But compare Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir. 1982), in which a majority of the panel upheld the constitutional- ity of Rule B because of the unique commercial context in which it is invoked. The practice described in Rule B(l) has been adopted in some districts by local rule. E.g., N.D. Calif Local Rule 603-3; W.D. Wash. Local Admiralty Rule 115(d). The rule envisions that the order will issue when the plaintiff makes a prima facie showing that he has a maritime claim against the defendant in the amount sued for and the defendant is not present in the district. A simple order with conclusory findings is contemplated. The reference to review by the "court" is broad enough to embrace review by a magistrate as well as by a district judge. The new provision recognizes that in some situations, such as when the judge is unavailable and the ship is about to depart from the jurisdiction, it will be impracticable, if not impossible, to secure the judicial review contemplated by Rule B(l). When "exigent circumstances" exist, the rule enables the plaintiff to secure the issuance of the summons and process of attachment and garnishment, subject to a later showing that the necessary circumstances actually existed. This provision is intended to provide a safety valve without undermining the require- ment of preattachment scrutiny. Thus, every effort to secure judicial review, including conducting a hearing by telephone, should be pursued before resorting to the exigent circumstances procedure. Rule C. Actions in Rem: Special Provisions (1) When Available. An action in rem may be brought: (a) To enforce any maritime lien; (b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto. Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable. Statutory provisions exempting vessels or other property' owned or possessed by or operated by or for the United States from arrest or seizure are not affected 181 Rule C Supplemental Rules by this rule. When a statute so provides, an action against the United States or an instrumentahty thereof may proceed on in rem principles. (2) Complaint. In actions in rem the complaint shall be verified on oath or solemn affirmation. It shall describe with reasonable particularity the property that is the subject of the action and state that it is within the district or will be during the pendency of the action. In actions for the enforcement of forfeitures for violation of any statute of the United States the complaint shall state the place of seizure and whether it was on land or on navigable waters, and shall contain such allegations as may be required by the statute pursuant to which the action is brought. (3) Judicial Authorization and Process. Except in actions by the United States for forfeitures for federal 'statutory violations, the verified complaint and any supporting papers shall be reviewed by the court and, if the conditions for an action in rem appear to exist, an order so stating and authorizing a warrant for the arrest of the vessel or other property that is the subject of the action shall issue and be delivered to the clerk who shall prepare the warrant and deliver it to the marshal for service. If the property that is the subject of the action consists in whole or in part of freight, or the proceeds of property sold, or other intangible property, the clerk shall issue a summons directing any person hav- ing control of the funds to show cause why they should not be paid into court to abide the judgment. Supplemental process enforcing the court's order may be issued by the clerk upon application without further order of the court. If the plaintiff or his attorney certifies that exigent circumstances make review by the court impracticable, the clerk shall issue a summons and warrant for the arrest and the plaintiff shall have the burden on a post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed. In actions by the United States for forfeitures for federal statutory violations, the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances. As amended Apr. 29, 1985; eff. Aug. 1, 1985. (4) Notice. No notice other than the execution of the process is required when the property that is the subject of the action has been released in accor- dance with the Rule E(5). If the property is not released within 10 days after execution of process, the plaintiff shall promptly or within such time as may be allowed by the court cause public notice of the action and arrest to be given in a newspaper of general circulation in the district, designated by order of the court. Such notice shall specify the time within which the answer is required to 182 Supplemental Rules Rule C be filed as provided by subdivision (6) of this rule. This rule does not affect the requirements of notice in actions to foreclose a preferred ship mortgage pur- suant to the Act of June 5, 1920, ch. 250, ^50, as amended. (5) Ancillarj- Process. In any action in rem in which process has been ser\ed as provided by this rule, if any part of the propert) that is the subject of the achon has not been brought within the control of the court because it has been removed or sold, or because it is intangible property in the hands of a person who has not been served with process, the court may, on motion, order any person having possession or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or paid into court to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require. (6) Claim and ,\nswer; Interrogatories. The claimant of property that is the subject of an achon in rem shall file his claim within 10 days after process has been executed, or within such additional time as may be allowed by the court, and shall ser\e his answer within 20 days after the filing of the claim. The claim shall be verified on oath or solemn affirmation, and shall state the interest in the properts- by virtue of which the claimant demands its restitution and the right to defend the achon. if the claim is made on behalf of the person entitled to possession by an agent, bailee, or attorney, it shall state that he is duly authorized to make the claim, .^t the time of answermg the claimant shall also ser\e answers to any interrogatories served with the complaint. In actions in rem interrogatories may be so served without leave of court. Advisory Committee Note to 1985 Amendment Rule C(?) has been amended to provide for judicial scrutiny before the issuance of any warrant of arrest. Its purpose is to eliminate any doubt as to the rule's constitutionalit) under the Sniadach line of cases. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), Fuentes v. Shevin, 407 U.S. 67(1972), Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), and North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). This was thought desirable even though both the Fourth and the Fifth Circuits have upheld the existing rule. ,'\mstar Corp. V. S/S Alexandres T., 664 F.2d 904 (4th Cir. 1981); Merchants Nahonal Bank v. The Dredge General G.L. Gillespie. 663 F.2d 1338 (5th Cir. 1981). cert, dismissed, 102 S. Gt. 2263 (1982). A contrarv- view was taken by ludge Tate in the Merchants National Bank case and by the district court in Alyeska Pipeline Ser^•ice Co. v. The Vessel Bay Ridge, 509 F. Supp. 1115 (D. .Alaska 1981), appeal dismissed, 703 F.2d 381 (9th Cir. 1983). The rule envisions that the order will issue upon the plaintiffs making a prima facie case showing that he has an action in rem against the defendant in the amount sued for and that the property' is within the district. A simple order 183 Rule C Supplemental Rules with conclusorv' findings is contemplated. The reference to review by the "court" is broad enough to embrace review by a magistrate as well as by a district judge. The new provision recognizes that in some situations, such as when the judge is unavailable and the ship is about to depart from the jurisdiction, it will be impracticable, if not impossible to secure the judicial review contemplated by Rule C(3). When "exigent circumstances" exist, the rule enables the plaintiff to secure the issuance of the summons and warrant of arrest, subject to a later showing that the necessary circumstances actually existed. This provision is in- tended to provide a safety valve without undermining the requirement of pre- arrest scrutiny. Thus, every effort to secure judicial review, including conducting a hearing by telephone, should be pursued before invoking the exigent circum- stances procedure. Rule D. Possessory, Petitory, and Partition Actions In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime propertv', and in all actions by one or more part owners against the others to obtain security for the return of the vessel from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the vessel for any voyage on giving security for its safe return, the process shall be by a warrant of arrest of the vessel, cargo, or other property, and by notice in the manner provided by Rule B(2) to the adverse party or parties. Rule E. Actions in Rem and Quasi in Rem: General Provisions (1) Applicability. Except as otherwise provided, this rule applies to actions in personam with process of maritime attachment and garnishment, actions in rem, and petitor>', possessory, and partition actions, supplementing Rules B, C, and D. (2) Complaint; Security. (a) Complaint, in actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularit>' that the defendant or claimant will be able, without moving for a more dehnite statement, to commence an investigation of the facts and to frame a responsive pleading. (b) Security for Costs. Subject to the provisions of Rule 54(d) and of relevant statutes, the court may, on the filing of the complaint or on the appearance of 184 Supplemental Rules Rule E any defendant, claimant, or any other party, or at any later time, require the plaintiff, defendant, claimant, or other party to give security, or additional security, in such sum as the court shall direct to pay all costs and expenses that shall be awarded against him by any interlocutory order or by the final judg- ment, or on appeal by any appellate court. (3) Process. (a) Territorial Limits of Effective Service. Process in rem and of maritime attachment and garnishment shall be served only within the district. (b) Issuance and Delivery. Issuance and delivery of process in rem, or of maritime attachment and garnishment, shall be held in abeyance if the plaintiff so requests. (4) Execution of Process; Marshal's Return; Custody of Property; Proce- dures for Release. (a) In General. Upon issuance and delivery of the process or, in the case of summons with process of attachment and garnishment, when it appears that the defendant cannot be found within the district, the marshal shall forthwith execute the process in accordance with this subdi\ision (4), making due and prompt return. (b) Tangible Property. If tangible property is to be attached or arrested, the marshal shall take it into his possession for safe custody. If the character or situation of the property is such that the taking of actual possession is impracti- cable, the marshal shall execute the process by affixing a copy thereof to the property in a conspicuous place and by leaving a copy of the complaint and process with the person having possession or his agent. In furtherance of his custody of any vessel the marshal is authorized to make a written request to the collector of customs not to grant clearance to such vessel until notified by the marshal or his deputy or by the clerk that the vessel has been released in accordance with these rules. (c) Intangible Property. If intangible property is to be attached or arrested the marshal shall execute the process by leaving with the garnishee or other obligor a copy of the complaint and process requiring him to answer as provided in Rules B(3)(a) and C(6); or he may accept for payment into the registry of the court the amount owed to the extent of the amount claimed by the plaintiff with interest and costs, in which event the garnishee or other obligor shall not be required to answer unless alias process shall be served. (d) Directions with Respect to Property in Custody. The marshal may at any time apply to the court for directions with respect to property that has been attached or arrested, and shall give notice of such application to any or all of the parties as the court may direct. 185 Rule E Supplemental Rules (e) Expenses of Seizing and Keeping Property; Deposit. These rules do not alter the provisions of Title 28, U.S.C., S 1921, as amended, relative to the expenses of seizing and keeping propert>' attached or arrested and to the re- quirement of deposits to cover such expenses. (4) Execution of Process; Marshal's Return; Custody of Property; Proce- dures for Release. . . . if) Procedure for Release From Arrest or Attachment. Whene\er property is arrested or attached, any person claiming an interest in it shall be entitled to a prompt hearing at which the plaintiff shall be required to show why the arrest or attachment should not be vacated or other relief granted consistent with these rules. This subdivision shall have no application to suits for seamen's wages when process is issued upon a certification of sufficient cause filed pursuant to Title 46, U.S.C. |iS603 and 604 or to actions by the United States for forfeitures for violation of any statutes of the United States. As amended Apr. 29, 1985; eff. Aug. 1, 1985. (5) Release of Property. (a) Special Bond. Except in cases of seizures for forfeiture under any law of the United States, whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property released, on the giving of security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of any appellate court. The parties may stipulate the amount and nature of such security . In the event of the inability or refusal of the parties so to stipulate the court shall fix the principal sum of the bond or stipulation at an amount sufficient to cover the amount of the plaintiff's claim fairly stated with accrued interest and costs; but the principal sum shall in no event exceed (i) twice the amount of the plaintiffs claim or (ii) the value of the property on due appraisement, whichever is smaller. The bond or stipulation shall be condi- tioned for the payment of the principal sum and interest thereon at 6 per cent per annum. (b) General Bond. The owner of any vessel may file a general bond or stipulation, with sufficient surety, to be approved by the court, conditioned to answer the judgment of such court in all or any actions that may be brought thereafter in such court in which the vessel is attached or arrested. Thereupon the execution of all such process against such vessel shall be sta\ed so long as the amount secured by such bond or stipulation is at least double the a^regate amount claimed by plaintiffs in all actions begun and pending in which such vessel has been attached or arrested. Judgments and remedies may be had on 186 Supplemental Rules Rule E such bond or stipulation as if a sp>ecial bond or stipulation had been filed in each of such actions. TTie district court may make necessars- orders to carr\ this rule into effect, particularh as to the giving of proper notice of any action against or attachment of a vessel for which a general bond has been filed. Such bond or stipulation shall be indorsed by the clerk u ith a minute of the achons wherein process is so stayed. Further securih may be required by the court at any time. If a special bond or stipulation is gi\en in a particular case, the liabilit) on the general bond or stipulation shall cease as to that case. (c) Release by Consent or Stipulation; Order of Court or Clerk; Costs. Any vessel, cargo, or other property in the custod\ of the marshal may be released forthwith ufMDn his acceptance and approval of a stipulation, bond, or other securit)', signed by the part\ on whose behalf the prop>ert> is detained or his attorney and expressly authorizing such release, if all costs and charges of the court and its officers shall have first been paid. Otherwise no pro{>ert\ in the custody of the marshal or other officer of the court shall be released without an order of the court; but such order may be entered as of course by the clerk, uf>on the giving of approved securih as provided by law and these rules, or uf>on the dismissal or disconhnuance of the action; but the marshal shall not deliver any propertv so released until the costs and charges of the officers of the court shall first have been paid. (d) Possessory, Petitory, and Partition Actions. The foregoing provisions of this subdivision (5 1 do not apply to petitorv. p>ossessorv, and partition actions. In such cases the prof>ertv' arrested shall be released only by order of the court, on such terms and conditions and on the giving of such securitv as the court may require. (6) Reduction or Impairment of Security. Whenever securitv' is taken the court may, on motion and hearing, for good cause shown, reduce the amount of securitv' given; and if the suretv shall be or become insufficient, new or additional sureties may be required on motion and hearing. (7) Securitv on Counterclaim. W henever there is asserted a counterclaim arising out of the same transaction or occunence with respect to which the action was originallv filed, and the defendant or claimant in the original action has given security to respond in damages, any plaintiff for whose benefit such securitv' has been given shall give securitv- in the usual amount and form to respwnd in damages to the claims set forth in such counterclaim, unless the court, for cause shown, shall othenvise direct; and proceedings on the original claim shall be stayed until such securitv is given, unless the court otherwise directs. When the United States or a corporate instrumentalitv thereof as defen- 187 Rule E Supplemental Rules dant is relie\ed by law of the requirement of giving security' to respond in damages it shall nevertheless be treated for the purposes of this subdivision E(7) as if it had given such security if a private person so situated would have been required to give it. (8) Restricted Appearance. An appearance to defend against an admiralty and maritime claim v\ith respect to which there has issued process in rem, or process of attachment and garnishment whether pursuant to these Supplemen- tal Rules or to Rule 4(e), may be expressly restricted to the defense of such claim, and in that event shall not constitute an appearance for the purposes of any other claim with respect to which such process is not available or has not been served. (9) Disposition of Property; Sales. (a) Actions for Forfeitures. In any action in rem to enforce a forfeiture for violation of a statute of the United States the property shall be disposed of as provided by statute. (b) Interlocutory Sales. If propertv' that has been attached or arrested is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action, or if the expense of keeping the property is exces- sive or disproportionate, or if there is unreasonable delay in securing the release of property, the court, on application of any party or of the marshal, may order the property or any portion thereof to be sold; and the proceeds, or so much thereof as shall be adequate to satisfy any judgment, may be ordered brought into court to abide the event of the action; or the court may, on motion of the defendant or claimant, order delivery of the property to him, upon the giving of security in accordance with these rules. (c) Sales; Proceeds. All sales of property shall be made by the marshal or his deputy, or other proper officer assigned by the court where the marshal is a party in interest; and the proceeds of sale shall be forthwith paid into the registry of the court to be disposed of according to law. Advisory Committee Note to 1985 Amendment Rule E(4)(f) makes available the t\pe of prompt post-seizure hearing in proceed- ings under Supplemental Rules B and C that the Supreme Court has called for in a number of cases arising in other contexts. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975); Mitchell v. VV.T. Grant Co.. 416 U.S. 600 (1974). Although post-attachment and post-arrest hearings always have been available on motion, an explicit statement emphasizing promptness and elaborat- ing the procedure has been lacking in the Supplemental Rules. Rule E(4)(f) is 188 Supplemental Rules Rule F designed to satisfy the constitutional requirement of due process by guaranteeing to the shipowner a prompt post-seizure hearing at which he can attack the complaint, the arrest, the security demanded, or any other alleged deficiency in the proceedings up to that point. The amendment also is intended to eliminate the previously disparate treatment under local rules of defendants whose property has been seized pursuant to Supplemental Rules B and C. The new Rule E(4)(f) is based on a proposal by the Maritime Law Association of the United States and on local admiralty rules in the Eastern and Southern Districts of New York. E.D.N. Y. Local Rule 13; S.D.N. Y. Local Rule 12. Similar provisions have been adopted by other maritime districts. E.g., N.D. Calif. Local Rule 603-4; W.D. La. Local Admiralty Rule 21. Rule E(4)(f) will provide uniformity in practice and reduce constitutional uncertainties. Rule E(4)(f ) is triggered by the defendant or any other person with an interest in the properh' seized. Upon an oral or written application similar to that used in seeking a temporary restraining order, see Rule 65(b), the court is required to hold a hearing as promptly as possible to determine whether to allow the arrest or attachment to stand. The plainhff has the burden of showing why the seizure should not be vacated. The hearing also may determine the amount of security to be granted or the propriety of imposing counter-security to protect a defendant from an improper seizure. Rule F. Limitation of Liability (1) Time for Filing Complaint; Security. Not later than six months after his receipt of a claim in writing, any vessel owner may file a complaint in the appropriate district court, as provided in subdivision (9) of this rule, for limita- tion of liabilitv' pursuant to statute. The owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of his interest in the vessel and pending freight, or approved security therefor, and in addition such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended; or (b) at his option shall transfer to a trustee to be appointed by the court, for the benefit of claimants, his interest in the vessel and pending freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of the statutes as amended. The plaintiff shall also give security for costs and, if he elects to give security, for interest at the rate of 6 per cent per annum from the date of the securih'. (2) Complaint. The complaint shall set forth the facts on the basis of which the right to limit liability is asserted, and all facts necessary to enable the court to determine the amount to which the owner's liability shall be limited. The complaint may demand exoneration from as well as limitation of liability. It shall state the voyage, if any, on which the demands sought to be limited arose, with the date and place of its termination; the amount of all demands including 189 Rule F Supplemental Rules all unsatisfied liens or claims of lien, in contract or in tort or otherwise, arising on that voyage, so far as known to the plaintiff, and what actions and proceed- ings, if any, are pending thereon; whether the vessel was damaged, lost, or abandoned, and, if so, when and where; the value of the vessel at the close of the voyage or, in case of wreck, the value of her wreckage, strippings, or proceeds, if any, and where and in whose possession they are; and the amount of any pending freight recovered or recoverable. If the plaintiff elects to transfer his interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; and whether the vessel sustained any injury upon or by reason of such subsequent voyage or trip. (3) Claims against Owner; Injunction. Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or his property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecu- tion of any achon or proceeding against the plaintiff or his propert)' with respect to any claim subject to limitation in the action. (4) Notice to Claimants. Upon the owner's compliance with subdivision (1) of this rule the court shall issue a notice to all persons asserting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice. The date so fixed shall not be less than 30 days after issuance of the notice. For cause shown, the court may enlarge the time within which claims may be filed. The notice shall be published in such newspaper or newspapers as the court may direct once a week for four successive weeks prior to the date fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person known to have made any claim against the vessel or the plaintiff arising out of the voyage or trip on which the claims sought to be limited arose. In cases involving death a copy of such notice shall be mailed to the decedent at his last known address, and also to any person who shall be known to have made anv claim on account of such death. (5) Claims and Answer. Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule. Each claim shall specify' the facts upon which the claimant relies in support of his 190 Supplemental Rules Rule F claim, the items thereof, and the dates on which the same accrued. If a claimant desires to contest either the right to exoneration from or the right to limitation of Iiabilit>- he shall file and serve an answer to the complaint unless his claim has included an answer. (6) Information to Be Given Claimants. Within 10 days after the date specified in the notice for filing claims, or withm such time as the court thereafter may allow, the plaintiff shall mail to the attorney for each claimant (or if the claimant has no attorney to the claimant himself) a list setting forth (a) the name of each claimant, (b) the name and address of his attorney (if he is known to have one), (c) the nature of his claim, i.e., whether property loss, property damage, death, personal injury, etc., and (d) the amount thereof. (7) Insufficiency of Fund or Security. Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiffs interest in the \essel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiffs interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant ma>' demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injuni-; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced. (8) Objections to Claims: Distribution of Fund. .-Xny interested party may question or contro\ert any claim without filing an objection thereto. I'pon determination of liabilitv' the fund deposited or secured, or the proceeds of the vessel and pending freight, shall be divided pro rata, subject to all relevant pro\ isions of law, among the se\ eral claimants in proportion to the amounts of their respective claims, dul\' pro\ed, sa\ing, howe\er, to all parties any priority to which they may be legally entitled. (9) Venue; Transfer. The complaint shall be filed in any district in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit liabilit>; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters aforesaid, and suit has not been commenced against the owner, the proceedings may be had in the district in w hich the \essel ma>' be, but if the 191 Rule F Supplemental Rules vessel is not within any district and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of parties and witnesses, in the interest of justice, the court may transfer the action to any district; if venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of these rules. 192 SELECTED FEDERAL RULES OF APPELLATE PROCEDURE As Amended through July 1, 1986 TABLE OF RULES Title I. Applicability of Rules Rule 1. Scope of Rules 2. Suspension of Rules Title n. Appeals from Judgments and Orders of District Courts Rule 3. Appeal as of Right — How Taken 4. Appeal as of Right — When Taken 5. Appeals by Permission under 28 U.S.C. S1292(b) 6. Appeals by Allowance in Bankruptcy Proceedings [Omitted] 7. Bond for Costs on Appeal in Civil Cases 8. Stay or Injunction Pending Appeal 9. Release in Criminal Cases (Omitted] 10. The Record on Appeal 11. Transmission of the Record [Omitted] 12. Docketing the Appeal; Filing of the Record (Omitted) Title ffl. Review of Decisions of the Tax Court of the United States [Omitted] Title IV. Review and Enforcement of Orders of Administrative Agencies, Boards, Commis- sions and Officers [Omitted] Title V. Extraordinary Writs Rule 21. Writs of Mandamus and Prohibition Directed to a judge or Judges and Other Extraordi- nary Writs Title VI. Habeas Corpus; Proceedings in Forma Pauperis Rule 22. [Omitted] 23. [Omitted] 24. Proceedings in Forma Pauperis 193 Selected Federal Rules of Appellate Procedure Title VII. General Provisions Rule 25. Filing and Service 26. Computation and Extension of Time 27. Motions 28. Briefs 29. Brief of an Amicus Curiae ?0. Appendix to the Briefs 31. Filing and Service of Briefs 32. Form of Briefs, the Appendix and Other Papers [Omitted] 33. Prehearing Conference 34. Oral Argument 35. Determination of Causes by the Court in Banc 36. Entry of Judgment 37. Interest on [udgments 38. Damages for Delay 39. Costs 40. Petition for Rehearing 41 Issuance of Mandate; Stay of Mandate 42. Voluntary Dismissal 43. Substituhon of Parties 44 Cases Involving Constitutional Questions Where United States Is Not a Party 45. Duties of Clerks 46. Attorneys 47. Rules by Courts of Appeals 48. Title Title I. Applicability of Rules Rule 1 . Scope of Rules (a) Scope of Rules. These rules govern procedure in appeals to United States courts of appeals from the United States district courts and the United States Tax Court; in proceedings in the courts of appeals for review or enforcement of orders of administrative agencies, boards, commissions and officers of the United States; and in applications for writs or other relief which a court of appeals or a judge thereof is competent to give. When these rules provide for the making of a motion or application in the district court, the procedure for making such motion or application shall be in accordance with the practice of the district court. As amended Apr. 30, 1979, eff. Aug. 1, 1979. (b) Rules Not to Affect Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals as established by law. 194 Selected Federal Rules of Appellate Procedure Rule 3 Rule 2. Suspension of Rules In the interest of expediting decision, or for other good cause shown, a court of appeals may, except as otherwise provided in Rule 26(b), suspend the re- quirements or provisions of any of these rules in a particular case on applica- tion of a party or on its own motion and may order proceedings in accordance with its direction. Title n. Appeals from Judgments and Orders of District Courts Rule 3. Appeal as of Right — How Taken (a) Filing the Notice of Appeal. An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed b>' Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by permission under 28 U.S.C. )il292{b) and appeals by allow- ance in bankruptcy shall be taken in the manner prescribed by Rule 5 and Rule 6, respectively. (b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals. (c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Form I in the Appendix of Forms is a suggested form of a notice of appeal. An appeal shall not be dismissed for informalih' of form or title of the notice of appeal. As amended Apr. 30, 1979, eff. Aug. I, 1979. (d) Service of the Notice of Appeal. The clerk of the district court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record of each party other than the appellant, or, if a party is not represented by counsel, to the last known address of that party; and the clerk shall transmit 195 Rule 3 Selected Federal Rules of Appellate Procedure forthwith a copy of the notice of appeal and of the docket entries to the clerk of the court of appeals named in the notice. When an appeal is taken by a defendant in a criminal case, the clerk shall also serve a copy of the notice of appeal upon the defendant, either by personal service or by mail addressed to the defendant. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or the party's counsel. The clerk shall note in the docket the names of the parties to whom the clerk mails copies, with the date of mailing. As amended Mar. 10, 1986, eff. July 1, 1986. (e) Payment of Fees. Upon the filing of any separate or joint notice of appeal from the district court, the appellant shall pay to the clerk of the district court such fees as are established by statute, and also the docket fee prescribed by the Judicial Conference of the United States, the latter to be received by the clerk of the district court on behalf of the court of appeals. Added Apr. 30, 1979, eff. Aug. 1, 1979. Rule 3.1. Appeals from Judgments Entered by Magistrates in Civil Cases When the parties consent to a trial before a magistrate pursuant to 28 U.S.C. S6?6(c){l), an appeal from a judgment entered upon the direction of a magis- trate shall be heard by the court of appeals pursuant to 28 U.S.C. S636{c)(3), unless the parties, in accordance with 28 U.S.C. S636(c)(4), consent to an appeal on the record to a judge of the district court and thereafter, b\ petition only, to the court of appeals. Appeals to the court of appeals pursuant to 28 U.S.C. )i636(c)(3) shall be taken in identical fashion as appeals from other judgments of the district court. As amended. Mar. 10. 1986, eff. July 1, 1986. Rule 4. Appeal as of Right — When Taken (a) Appeals in Civil Cases. (1) In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any parh within 60 days after such entry. If a notice of appeal is mistakenly filed in the court of 1% Selected Federal Rules of Appellate Procedure Rule 4 app>eals, the clerk of the court of appeals shall note thereon the date on which it was received and transmit it to the clerk of the district court and it shall be deemed filed in the district court on the date so noted. (2) Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof (3) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires. (4) If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time mea- sured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing. (5) The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later. (6) A judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79 (a) of the Federal Rules of Civil Procedure. As amended Apr. 30. 1979, eff. Aug. 1, 1979. (b) Appeals in Criminal Cases. In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announce- ment of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will 197 Rule 4 Selected Federal Rules of Appellate Procedure similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after cntr\' of the judgment. When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Rule 5. Appeals by Permission under 28 U.S.C. 1 1292(b) (a) Petition for Permission to Appeal. An appeal from an interlocutory order containing the statement, prescribed by 28 U.S.C. )il292(b) may be sought by filing a petition for permission to appeal with the clerk of the court of appeals within 10 days after the entry of such order in the district court with proof of service on all other parties to the action in the district court. An order may be amended to include the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended. (b) Content of Petition; Answer. The petition shall contain a statement of the facts necessary to an understanding of the controlling question of law determined by the order of the district court; a statement of the question itself; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially ad- vance the termination of the litigation. The petition shall include or have annexed thereto a copy of the order from which appeal is sought and of any findings of fact, conclusions of law and opinion relating thereto. Within 7 days after service of the petition an adverse part)' may file an answer in opposition. The application and answer shall be submitted without oral argu- ment unless otherwise ordered. (c) Form of Papers; Number of Copies. All papers may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished. (d) Grant of Permission; Cost Bond; Filing of Record. Within 10 days after the entry of an order granting permission to appeal the appellant shall (1) pay to the clerk of the district court the fees established by statute and the docket fee prescribed by the Judicial Conference of the United States and (2) file a bond 198 Selected Federal Rules of Appellate Procedure Rule 5.1 for costs if required pursuant to Rule 7. The clerk of the district court shall notifv the clerk of the court of appeals of the payment of the fees. Upon receipt of such notice the clerk of the court of appeals shall enter the appeal upon the docket. The record shall be transmitted and filed in accordance with Rules 1 1 and 12(b). A notice of appeal need not be filed. As amended Apr. 30, 1979, eff. Aug, 1, 1979. Rule 5.1. Appeals by Permission Under 28 U.S.C. \^636(c)(5) (a) Petition for Leave to Appeal; Answer or Cross Petition. An appeal from a district court judgment, entered after an appeal pursuant to 28 U.S.C. J636(c)(4) to a judge of the district court from a judgment entered upon direction of a magistrate in a civil case, may be sought by filing a petition for lea\e to appeal. An appeal on petition for leave to appeal is not a matter of right, but its allowance is a matter of sound judicial discretion. The petition shall be filed with the clerk of the court of appeals within the time pro\ided by Rule 4(a) for filing a notice of appeal, with proof of service on all parties to the action in the district court. A notice of appeal need not be filed. Within 14 days after service of the petition, a partv- may file an answer in opposition or a cross petition. (b) Content of Petition; Answer. The petition for lea\e to appeal shall contain a statement of the facts necessary to an understanding of the questions to be presented by the appeal; a statement of those questions and of the relief sought; a statement of the reasons why in the opinion of the petitioner the appeal should be allowed; and a copy of the order, decree or judgment com- plained of and any opinion or memorandum relating thereto. The petition and answer shall be submitted to a panel of judges of the court of appeals without oral argument unless otherwise ordered. (c) Form of Papers; Number of Copies. All papers may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished. (d) Allowance of the Appeal; Fees; Cost Bond; Filing of Record. Within 10 days after the entry of an order granting the appeal, the appellant shall (1) pay to the clerk of the district court the fees established by statute and the docket fee prescribed by the judicial Conference of the United States and (2) file a bond for costs if required pursuant to Rule 7. The clerk of the district court shall notify the clerk of the court of appeals of the payment of the fees. Upon receipt of such notice, the clerk of the court of appeals shall enter the appeal upon the docket. The record shall be transmitted and filed in accordance with Rules 1 1 and 12(b). Added Mar. 10, 1986, eff. July 1, 1986. 199 Rule 6 Selected Federal Rules of Appellate Procedure Rule 6. Appeals by Allowance in Bankruptcy Proceedings [Omitted] Rule 7. Bond for Costs on Appeal in Civil Cases The district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to ensure payment of costs on appeal in a civil case. The provisions of Rule 8(b) apply to a surety upon a bond given pursuant to this rule. As amended Apr. 30, 1979, eff. Aug. 1, 1979. Rule 8. Stay or Injunction Pending Appeal (a) Stay Must Ordinarily Be Sought in the First Instance in District Court; Motion for Stay in Court of Appeals. Application for a stay of the judgment or order of a district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunc- tion during the pendency of an appeal must ordinarily be made in the first instance in the district court. A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that applica- tion to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the district court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk and normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and con- sidered by a single judge of the court. (b) Stay May Be Conditioned Upon Giving of Bond; Proceedings against Sureties. Relief a\ailablc in the court of appeals under this rule may be condi- tioned upon the filing of a bond or other appropriate security in the district court. If security is given in the form of a bond or stipulation or other undertak- ing with one or more sureties, each suret)- submits to the jurisdiction of the district court and irrevocably appoints the clerk of the district court as the surety's agent upon whom any papers affecting the suretv's liability on the bond or undertaking may be served. A surety's liability may be enforced on motion in the district court without the necessity of an independent action. The mo- tion and such notice of the motion as the district court prescribes may be served 200 Selected Federal Rules of Appellate Procedure Rule 10 on the clerk of the district court, who shall forthwith mail copies to the sureties if their addresses are known. As amended Mar. 10, 1986, eff. Julv 1. 1986. (c) Stays in Criminal Cases. Stays in criminal cases shall be had in accor- dance with the provisions of Rule 38(a) of the Federal Rules of Criminal Procedure. Rule 9. Release in Criminal Cases [Omitted] Rule 10. The Record on Appeal (a) Composition of the Record on Appeal. The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal m all cases. (b) The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript Is Ordered. (1) Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as the appellant deems necessary, subject to local rules of the courts of appeals. The order shall be in writing and within the same period a copy shall be filed v\ ith the clerk of the district court. If funding is to come from the United States under the Criminal Justice .-Kct, the order shall so state. If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect. (2) If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the esidence or is contran- to the e\ idence. the appellant shall include in the record a transcript of all e\idence relevant to such finding or conclusion. (3) Unless the entire transcript is to be included, the appellant shall, within the 10 days time pro\ided in lb)(l) of this Rule 10, file a statement of the issues the appellant intends to present on the appeal and shall ser\e on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript of other parts of the proceedings to be necessary, the appellee shall, within 10 days after the service of the order or certificate and the statement of the appellant, file and ser\e on the appellant a designation of additional parts to be included. Unless within 10 days after service of such designation the appel- lant has ordered such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the district court for an order requiring the appellant to do so. (4) ,'\t the time of ordering, a party must make satisfactory arrangements with the reporter for pa\mcnt of the cost of the transcript. 201 Rule 10 Selected Federal Rules of Appellate Procedure (c) Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript Is Unavailable. If no report of the e\idence or pro- ceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the e\idence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the statement and any objec- tions or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal. As amended Mar. 10, 1986, eff. July 1, 1986. (d) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such addi- hons as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the district court and shall then be certified to the court of appeals as the record on appeal and transmitted thereto by the clerk of the district court within the time pro\ided by Rule 1 1. Copies of the agreed statement may be filed as the appendix required by Rule 30. (e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either part) is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals. Rule 1 1 . Transmission of the Record (a) Duty of Appellant. After filing the notice of appeal the appellant, or in the event that more than one appeal is taken, each appellant, shall comply with the provisions of Rule 10(b) and shall take any other action necessary to enable the clerk to assemble and transmit the record. A single record shall be transmitted. As amended Apr. 30, 1979, eff. Aug. 1, 1979. 202 Selected Federal Rules of Appellate Procedure Rule 1 1 (b) Duty of Reporter to Prepare and File Transcript; Notice to Court of Appeals; Duty of Clerk to Transmit the Record. Upon receipt of an order for a transcript, the reporter shall acknowledge at the foot of the order the fact that the reporter has received it and the date on which the reporter expects to have the transcript completed and shall transmit the order, so endorsed, to the clerk of the court of appeals. If the transcript cannot be completed within 30 days of receipt of the order the reporter shall request an extension of time from the clerk of the court of appeals and the action of the clerk of the court of appeals shall be entered on the docket and the parties notified. In the event of the failure of the reporter to file the transcript within the hme allowed, the clerk of the court of appeals shall notify the district judge and take such other steps as may be directed by the court of appeals. Upon completion of the transcript the reporter shall file it with the clerk of the district court and shall notify the clerk of the court of appeals that the reporter has done so. When the record is complete for purposes of the appeal, the clerk of the district court shall transmit it forthwith to the clerk of the court of appeals. The clerk of the district court shall number the documents comprising the record and shall transmit with the record a list of documents correspondingly num- bered and identified with reasonable definiteness. Documents of unusual bulk or weight, physical exhibits other than documents, and such other parts of the record as the court of appeals may designate by local rule, shall not be trans- mitted by the clerk unless the clerk is directed to do so by a part\' or by the clerk of the court of appeals. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits of unusual bulk or weight. As amended Mar. 10, 1986, eff. July 1, 1986. (c) Temporary Retention of Record in District Court for Use in Preparing Appellate Papers. Notwithstanding the provisions of (a) and (b) of this Rule 1 1, the parties may stipulate, or the district court on motion of any party may order, that the clerk of the district court shall temporarily retain the record for use by the parties in preparing appellate papers. In that event the clerk of the district court shall certify to the clerk of the court of appeals that the record, including the transcript or parts thereof designated for inclusion and all neces- sary exhibits, is complete for purposes of the appeal. Upon receipt of the brief of the appellee, or at such earlier time as the parties may agree or the court may order, the appellant shall request the clerk of the district court to transmit the record. As amended Mar. 10, 1986, eff. July 1, 1986. (d) Extension of Time for Transmission of the Record; Reduction of Time. Abrogated Apr. 30, 1979, eff. Aug. I, 1979. (e) Retention of the Record in the District Court by Order of Court. The court of appeals may provide by rule or order that a certified copy of the docket 203 Rule 1 1 Selected Federal Rules of Appellate Procedure entries shall be transmitted in lieu of the entire record, subject to the right of any part\' to request at any time during the pendency of the appeal that desig- nated parts of the record be transmitted. If the record or any part thereof is required in the district court for use there pending the appeal, the district court may make an order to that effect, and the clerk of the district court shall retain the record or parts thereof subject to the request of the court of appeals, and shall transmit a copy of the order and of the docket entries together with such parts of the original record as the district court shall allow and copies of such parts as the parties may designate. (f) Stipulation of Parties That Parts of the Record Be Retained in the District Court. The parties may agree by written stipulation filed in the district court that designated parts of the record shall be retained in the district court unless thereafter the court of appeals shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes. (g) Record for Preliminary Hearing in the Court of Appeals. If prior to the time the record is transmitted a party desires to make in the court of appeals a motion for dismissal, for release, for a stay pending appeal, for additional security on the bond on appeal or on a supersedeas bond, or for any intermediate order, the clerk of the district court at the request of any party shall transmit to the court of appeals such parts of the original record as any party shall designate. Rule 12. Docketing the Appeal; Filing of the Record (a) Docketing the Appeal. Upon receipt of the copy of the notice of appeal and of the docket entries, transmitted by the clerk of the district court pursuant to Rule 3(d), the clerk of the court of appeals shall thereupon enter the appeal upon the docket. An appeal shall be docketed under the title gi\en to the action in the district court, with the appellant identified as such, but if such title does not contain the name of the appellant, the appellant's name, identified as appellant, shall be added to the title. As amended Mar. 10, 1986, eff. July 1, 1986. (b) Filing the Record, Partial Record, or Certificate. LIpon receipt of the record transmitted pursuant to Rule 11(b), or the partial record transmitted pursuant to Rule 1 1(e), (f), or (g), or the clerk's certificate under Rule 1 1(c), the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed. As amended Apr. 30, 1979, eff. Aug. 1, 1979. (c) Dismissal for Failure of Appellant to Cause Timely Transmission or to Docket Appeal. Abrogated Apr. 30, 1979, eff. Aug. 1, 1979. 204 Selected Federal Rules of Appellate Procedure Rule 2 1 Title in. Review of Decisions of the Tax Court of the United States [Omitted] Title rV. Review and Enforcement of Orders of Administrative Agencies, Boards, Commissions and Officers [Omitted] Title V. Extraordinary Writs Rule 2 1 . Writs of Mandamus and Prohibition Directed to a Judge or Judges and Other Extraordinary Writs (a) Mandamus or Prohibition to a Judge or Judges; Petition for Writ; Service and Filing. Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition therefor with the clerk of the court of appeals u ith proof of senice on the respondent judge or judges and on all parties to the action in the trial court. The petition shall contain a statement of the facts necessary- to an understanding of the issues presented by the applica- tion; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue; and copies of any order or opinion or parts of the record which may be essenhal to an understanding of the matters set forth in the petition. Upon receipt of the prescribed docket fee. the clerk shall docket the petition and submit it to the court. (b) Denial; Order Directing Answer. If the court is of the opinion that the writ should not be granted, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the Hme fixed by the order. The order shall be ser\ed by the clerk on the judge or judges named respondents and on all other parties to the action in the trial court. All parties below other than the petitioner shall also be deemed respondents for all purposes. Two or more respondents may answer jointly. If the judge or judges named respondents do not desire to appear in the proceeding, they may so advise the clerk and all parties by letter, but the petition shall not thereby be taken as admitted. The clerk shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument. The proceeding shall be given preference o\er ordinary ci\ il cases. (c) Other Extraordinary Writs. Application for extraordinar\- writs other than those presided for in subdi\isions (a) and (b) of this rule shall be made by petition filed with the clerk of the court of appeals with proof of ser\ice on the parties named as respondents. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdi\isions la) and (b) of this rule. 205 Rule 2 1 Selected Federal Rules of Appellate Procedure (d) Form of Papers; Number of Copies. All papers may be hpewritten. Three copies shall be filed with the original, but the court may direct that additional copies be furnished. Title VI. Habeas Corpus; Proceedings in Forma Pauperis [Rules 22 and 23 Omitted] Rule 24. Proceedings in Forma Pauperis (a) Leave to Proceed on Appeal in Forma Pauperis from District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court of a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 4 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor, the party's belief that that party is entitled to redress, and a statement of the issues which the party intends to present on appeal. If the motion is granted, the party may pro- ceed without further application to the court of appeals and without prepay- ment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial. Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certifi- cation or finding. If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify- that the appeal is not taken in good faith or shall find that the party is otherwise not entided to proceed in forma pauperis, the clerk shall forthwith ser\e notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 50 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has 206 Selected Federal Rules of Ap{)ellate Procedure Rule 25 been filed in the district court, and by a copy of the statement of reasons given by the district court for its action. As amended Mar. 10, 1986, eff. July 1, 1986. (b) Leave to Proceed on Appeal or Re\iew in Forma Pauperis in Adminis- trative Agency Proceedings. .A party to a proceeding before an admmistrative agency, board, commission or officer (including, for the purpose of this rule, the United States Tax Court) who desires to proceed on appeal or re\iew in a court of appeals in forma pauperis, when such appeal or re\iew may be had direcdy in a court of appeals, shall file in the court of appeals a mohon for leave so to proceed, together with the affida\ it prescribed by the first paragraph of (a) of this Rule 24. As amended Apr. 30, 1979, eff. Aug. 1, 1979. (c) Fonn of Briefe, Appendices and Other Papers. Parties allowed to pro- ceed in forma pauperis may file briefs, appendices and other papers in typewrit- ten form, and may request that the appeal be heard on the original record without the necessity of reproducing parts thereof in any form. Title VII. General Provisions Rule 25. Filing and Service (a) Filing. Papers required or permitted to be filed in a court of appeals shall be filed with the clerk. Filing may be accomplished by mail addressed to the clerk, but filing shall not be hmely unless the papers are received by the clerk within the time fixed for filing, except that briefs and appendices shall be deemed filed on the day of mailing if the most expeditious form of delivery by mail, excephng special delivery, is utilized. If a motion requests relief which may be granted by a single judge, the judge may permit the motion to be filed with the judge, in which event the judge shall note thereon the date of filing and shall thereafter transmit it to the clerk. As amended Mar. 10, 1986, eff. July 1, 1986. (b) Service of All Papers Required. Copies of all papers filed by any party and not required b\ these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for him on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel. (c) Manner of Service. Service may be personal or by mail. Personal service includes delivery of the copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing. 207 Rule 25 Selected Federal Rules of Appellate Procedure (d) Proof of Service. Papers presented for filing shall contain an acknowledg- ment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the person served, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require such to be filed promptly thereafter. Rule 26. Computation and Extension of Time (a) Computation of Time. In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, or Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" in- cludes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day ap- pointed as a holiday by the President or the Congress of the United States. It shall also include a day appointed as a holiday by the state wherein the district court which rendered the judgment or order which is or may be appealed from is situated, or by the state wherein the principal office of the clerk of the court of appeals in which the appeal is pending is located. As amended Mar. 10, 1986, eff. July L 1986. (b) Enlargement of Time. The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the court enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review, or a notice of appeal from, an order of an administrative agency, board, commission or officer of the United States, ex- cept as specifically authorized by law, (c) Additional Time after Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party and the paper is served by mail, 3 days shall be added to the prescribed period. As amended Mar. 10, 1986, eff". July 1. 1986. 208 Selected Federal Rules of Appellate Procedure Rule IS Rule 2". Motions (al Content of Motions; Response; Reply. Unless another form is elsewhere prescnbed bv these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of senice on all other parties. The motion shall contain or be accompanied by any matter required by a sjjecific provision of these rules governing such a motion, shall state with particu- larity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is suppwrted by brieb. affidavits or other papers, they shall be served and filed with the motion. .\ny party may file a response in opposition to a motion other than one for a procedural order for which see subdivision (b)] within 7 days after senice of the motion, but motions authorized by Rules 8, 9, IS and 41 mav be acted up>on after reasonable notice, and the court may shorten or extend the time for responding to any motion. (bl Determination of Motions for Procedural Orders. Notwithstanding the provisions of a of this Rule Z~ as to motions generally, motions for procedural orden. including any motion under Rule 26ib . may be acted upxan at any time, without awaiting a response thereto, and pursuant to rule or order of the court, motions for sjjecified types of procedural orders may be disposed of by the clerk. .\nv jjartv adversely affected by such action may by application to the court request consideration, vacation or modification of such action. .\s amended .\pr. 30. 19"9, eff. .\ug. 1. 19"9. (cl Power of a Single Judge to Ejitertain Motions. In addition to the author- ih expressly conferred by these rules or by law . a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may projjeriy be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of api>eals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court (d) Form of Paf>ers; Number of Copies. .\11 jjajsers relating to motions may be typewritten. Three copies shall be filed with the original, but the court may require that additional copies be furnished. Rule 28. Briefs (a) Brief of the .\ppellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated: 1 1 1 .-X table of contents, with page references, and a table of cases i alphabeti- cally arranged I. statutes and other authorities cited, with references to the pages of the brief where thev are cited. 209 Rule 28 Selected Federal Rules of Appellate Procedure (2) A statement of the issues presented for review. (3) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues pre- sented for review, with appropriate references to the record (see subdivision (e)). (4) An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. (5) A short conclusion stating the precise relief sought. (b) Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a)(l)-{4), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant. (c) Reply Brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of court. All reply briefs shall contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with refer- ences to the pages of the reply brief where they are cited. As amended Mar. 10, 1986, eff. July 1, 1986. (d) References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such desig- nations as "appellant" and "appellee."' It promotes clarity to use the designa- tions used in the lower court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the ship," "the stevedore," etc. (e) References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant (see Rule 30(a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 30(c). If the record is reproduced in accordance with the provisions of Rule 30(f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g.. Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, refer- ence shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. 210 Selected Federal Rules of Appellate Procedure Rule 29 (f) Reproduction of Statutes, Rules, Regulations, Etc. If determination of the issues presented requires the study of statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end, or they may be supplied to the court in pamphlet form. (g) Length 6f Briefs. Except by permission of the court, or as specified b>- local rule of the court of appeals, principal briefs shall not exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusi\e of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regu- lations, etc. As amended Apr. 30, 1979, eff. Aug. 1, 1979, (h) Briefs in Cases Involving Cross Appeals. If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and Rules 30 and 31, unless the parties otherwise agree or the court otherwise orders. The brief of the appellee shall contain the issues and argu- ment involved in his appeal as well as the answer to the brief of the appellant. (i) Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in repK' briefs. (j) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after the party's brief has been filed, or after oral argument but before decision, a party may promptly ad\ise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argu- ment state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited. As amended Mar. 10, 1986, eff. )uly 1. 1986. Rule 29. Brief of an Amicus Curiae A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for lea\e shall identif\ the interest of the applicant and shall state the reasons whv a brief of an amicus curiae is desirable. Save as 211 Rule 29 Selected Federal Rules of Appellate Procedure all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the part\' whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons. Rule 30. Appendix to the Briefs (a) Duty of Appellant to Prepare and File; Content of Appendix; Time for Filing; Number of Copies. I'he appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, findings or opinion; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. Except where they have independent relevance, memoranda of law in the district court should not be included in the appendix. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts. Unless filing is to be deferred pursuant to the provisions of subdi\ision (c) of this rule, the appellant shall serve and file the appendix with the brief Ten copies of the appendix shall be filed with the clerk, and one copy shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number. As amended Mar. 10, 1986, eff. July 1, 1986. (b) Determination of Contents of Appendix: Cost of Producing. The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than 10 days after the date on which the record is filed, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellee shall, within ten days after receipt of the designation, serve upon the appellant a designation of those parts. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the parties shall ha\e regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation. Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determi- 212 Selected Federal Rules of Appellate Procedure Rule 30 nation of the issues presented the appellant ma\- so advise the appellee and the appellee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case, but if either part>' shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party. Each circuit shall provide b\ local rule for the imposition of sanctions against attorneys who unreasonably and vexatiously increase the costs of litigation through the inclusion of unnecessary material in the appendix. As amended Mar. 10, 1986, eff. July 1, 1986. (c) Alternative Method of Designating Contents of the Appendix; How Ref- erences to the Record May Be Made in the Briefs When Alternative Method Is Used. If the court shall so provide by rule for classes of cases or by order in specific cases, preparation of the appendix may be deferred until after the briefs have been filed, and the appendix ma\ be filed 21 days after service of the brief of the appellee. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this Rule 30 shall apply, except that the designa- tions referred to therein shall be made by each party at the time each brief is served, and a statement of the issues presented shall be unnecessary. If the deferred appendix authorized by this subdiv ision is employed, refer- ences in the briefs to the record ma\' be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or if a party desires to refer in a brief directly to pages of the appendix, that partv may serve and file typewritten or page proof copies of the brief within the time required by Rule 31(a), with appropriate references to the pages of the parts of the record involved. In that event, within 14 days after the appendix is filed the party shall serve and file copies of the brief in the form prescribed by Rule 32(a) containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors mav be corrected. As amended Mar. 10, 1986, eff. Julv 1, 1986. (d) Arrangement of the Appendix. At the beginning of the appendix there shall be inserted a list of the parts of the record which it contains, in the order in which the parts are set out therein, with references to the pages of the appendix at which each part begins. The relevant docket entries shall be set out follow ing the list of contents. Thereafter, other parts of the record shall be set out in chronological order. When matter contained in the reporter's transcript of proceedings is set out in the appendix, the page of the ttanscript at which such matter mav be found shall be indicated in brackets immediatelv before the 213 Rule 30 Selected Federal Rules of Appellate Procedure matter which is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall be omitted. A question and its answer may be contained in a single paragraph. (e) Reproduction of Exhibits. Exhibits designated for inclusion in the ap- pendix ma\' be contained in a separate volume, or volumes, suitably indexed. Four copies thereof shall be filed with the appendix and one copy shall be served on counsel for each partv' separately represented. The transcript of a proceeding before an administrative agency, board, commission or officer used in an action in the district court shall be regarded as an exhibit for the purpose of this subdivision. (f ) Hearing of Appeals on the Original Record without the Necessity of an Appendix. A court of appeals may be rule applicable to all cases, or to classes of cases, or by order in specific cases, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as the court may require. Rule 3 1 . Filing and Service of Briefs (a) Time for Serving and Filing Briefs. The appellant shall serve and file a brief within 40 days after the date on which the record is filed. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument. If a court of appeals is prepared to consider cases on the merits promptly after briefs are filed, and its practice is to do so, it may shorten the periods prescribed above for serving and filing briefs, either by rule for all cases or for classes of cases, or by order for specific cases. As amended Mar. 10, 1986, eff'. July 1, 1986. (b) Number of Copies to Be Filed and Ser\ed. Twenty-five copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser number, and two copies shall be ser\ed on counsel for each part) separately represented. If a party is allowed to file tvpewritten ribbon and carbon copies of the brief, the original and three legible copies shall be filed with the clerk, and one copy shall be served on counsel for each partv sepa- rately represented. (c) Consequence of Failure to File Briefs. If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee 214 Selected Federal Rules of Appellate Procedure Rule 34 may move for dismissal of the appeal. If an appellee fails to file a brief, the appellee will not be heard at oral argument except by permission of the court. As amended Mar. 10, 1986, eff. July 1, 1986. Rule 32. Form of Briefs, the Appendix and Other Papers [Omitted] Rule 33. Prehearing Conference The court may direct the attorneys for the parties to appear before the court or a judge thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceedings by the court. The court or judge shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceeding, unless modified to prevent manifest injustice. Rule 34. Oral Argument (a) In General; Local Rule. Oral argument shall be allowed in all cases unless pursuant to local rule a panel of three judges, after examination of the briefs and record, shall be unanimously of the opinion that oral argument is not needed. Any such local rule shall pro\ide an\ party with an opportunity to file a statement setting forth the reasons why oral argument should be heard. A general statement of the criteria employed in the administration of such local rule shall be published in or with the rule and such criteria shall conform substantialK' to the following minimum standard: Oral argument will be allowed unless (1) the appeal is frivolous; or (2) the dispositi\e issue or set of issues has been recently authoritati\ely decided; or (3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. As amended Mar. 10, 1986. eff. July 1. 1986. (b) Notice of Argument; Postponement. The clerk shall ad\ise all parties whether oral argument is to be heard, and if so, of the time and place therefor, and the time to be allowed each side. A request for postponement of the argument or for allowance of additional time must be made by motion filed reasonably in ad\ance of the date fixed for hearing. As amended .V- 50. 19'79, eff. Aug. 1. 19~9. 215 Rule 34 Selected Federal Rules of Appellate Procedure (c) Order and Content of Argument. The appellant is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel will not be permitted to read at length from briefs, records or authorities. (d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the court otherwise directs. If a case involves a cross-appeal, the plaintiff in the action below shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument. (e) Non-Appearance of Parties. If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if counsel is present. If neither part>' appears, the case will be decided on the briefs unless the court shall otherwise order. As amended Mar. 10, 1986, eff. July 1, 1986. (f ) Submission on Briefs. By agreement of the parties, a case may be submit- ted for decision on the briefs, but the court may direct that the case be argued. (g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the court room unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best. Rule 35. Determination of Causes by the Court in Banc (a) When Hearing or Rehearing in Banc Will Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessan- to secure or maintain uniformity of its decisions, or (2) when the proceeding invokes a question of exceptional importance. (b) Suggestion of a Party for Hearing or Rehearing in Banc. .\ part)' may suggest the appropriateness of a hearing or rehearing in banc. No response shall be filed unless the court shall so order. The clerk shall transmit any such suggestion to the members of the panel and the judges of the court who are in 216 Selected Federal Rules of Appellate Procedure Rule 38 regular acti\e service but a vote need not be taken to determine whether the cause shall be heard or reheard in banc unless a judge in regular active service or a judge who was a member of the panel that rendered a decision sought to be reheard requests a vote on such a suggestion made by a partv. As amended Apr. 30, 1979, eff. Aug. 1, 1979. (c) Time for Suggestion of a Party for Hearing or Rehearing in Banc; Suggestion Does Not Stay Mandate. If a part>' desires to suggest that an appeal be heard initially in banc, the suggestion must be made by the date on which the appellee's brief is filed. A suggestion for a rehearing in banc must be made within the time prescribed by Rule 40 for filing a petition for rehearing, whether the suggestion is made in such petition or otherwise. The pendency of such a suggestion whether or not included in a petition for rehearing shall not affect the finality of the judgment of the court of appeals or stay the issuance of the mandate. As amended Apr. 30, 1979, eff. Aug. 1, 1979. Rule 36. Entry of Judgment The notation of a judgment in the docket constitutes entrv' of the judgment. The clerk shall prepare, sign and enter the judgment following receipt of the opinion of the court unless the opinion directs settlement of the form of the judgment, in which event the clerk shall prepare, sign and enter the judgment following final settlement by the court. If a judgment is rendered without an opinion, the clerk shall prepare, sign and enter the judgment following instruc- tion from the court. The clerk shall, on the date judgment is entered, mail to all parties a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of the judgment. Rule 37. Interest on Judgments Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the district court. If a judgment is modified or re- versed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest. Rule 38. Damages for Delay If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee. 217 Rule 39 Selected Federal Rules of Appellate Procedure Rule 39. Costs (a) To Whom Allowed. Except as othenvise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless othenvise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court. (b) Costs for and against the United States. In cases involving the United States or an agency or officer thereof, if an award of costs against the United States is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the United States. (c) Costs of Briefs, Appendices, and Copies of Records. By local rule the court of appeals shall fix the maximum rate at which the cost of printing or otherwise producing necessary copies of briefs, appendices, and copies of records authorized by Rule 30(f) shall be taxable. Such rate shall not be higher than that generally charged for such work in the area where the clerk's office is located and shall encourage the use of economical methods of printing and copying. As amended Mar. 10, 1986, eff. July 1, 1986. (d) Bill of Costs; Objections; Costs to Be Inserted in Mandate or Added Later. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which the party shall file w ith the clerk, with proof of service, within 14 days after the entry of judgment. Objections to the bill of costs must be filed within 10 days of ser\ice on the party against whom costs are to be taxed unless the time is extended by the court. The clerk shall prepare and certify an itemized statement of costs taxed in the court of appeals for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs and if the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate upon request by the clerk of the court of appeals to the clerk of the district court. As amended Mar. 10, 1986, eff. July 1, 1986. (e) Costs on Appeal Taxable in the District Courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee 218 Selected Fetkral Rales of Appellate Procedure Rule 41 for filing the notice of appeal shall be taxed in the district court as costs of the appeal in £a\ or of the part> entitled to costs under this rule. Rule 40. Petition for Rehearing Granted. A jjetition for rehearing ina\' be filed within 14 da>-5 after entr\ of judgment unless the time is shortened or enlarged by order or by local rule. The petition shall state with particularit) die points of law or &ct which in the opinion of the jjetitioner the court has o\erlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in supjxtrt of the petition will not be jjermitted. No answer to a petition for rehearing will be recei\ed unless requested by the court but a petition for rehearing will ordinarily not be granted in the absence of such a request If a petition for reheanng is granted the court may make a final disposition of the cause without reargument or may restore it to the calendar for reai^ment or resubmission or may make such other orders as are deemed appropnate under the circumstances of the particular case. .\s amended .\pr. 50. ]9"9. eff. .\ug. 1. 19~9. (b) Form of Petition; Length. The petition shall be in a form prescribed b\- Rule 52(ai. and copies shall be served and filed as prescribed by Rule 3 lib) for the service and filing of briefs. Except by permission of the court or as sp>eci- fied by local rule of the court of app)eals, a p>etition for rehearing shall not exceed 15 pages. .\s amended .\pr. 50, 19~9. eff. Aug. 1. 19~9. Rule 41. Issuance of Mandate: Stay of Mandate (a) Date of Issuance. The mandate of the court shall issue 21 days after the entrv of judgment unless the time is shortened or enlarged b\- order. A certified cop> of the iudgment and a cop\ of the opinion of die court if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timeh filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court If the p)etition is denied, the mandate shall issue ~ days after enby of the order denving the petition unless the time is shortened or enlarged by order. (b| Stay of Mandate Pending Application for Certiorari. A stay of the mandate pending application to the Supreme Court for a wiit of certiorari ma> be granted upwn motion, reasonable notice of which shall be given to aU parties. The sta> shall not exceed 30 da\3 unless the period is extended for 219 Rule 41 Selected Federal Rules of Appellate Procedure cause shown. If during the period of the stay there is filed with the clerk of the court of appeals a notice from the clerk of the Supreme Court that the party who has obtained the stay has filed a petition for the writ in that court, the stay shall continue until final disposition by the Supreme Court. Upon the filing of a copy of an order of the Supreme Court denying the petition for writ of certiorari the mandate shall issue immediately. A bond or other secu- rity may be required as a condition to the grant or continuance of a stay of the mandate. Rule 42. Voluntary Dismissal (a) Dismissal in the District Court. If an appeal has not been docketed, the appeal may be dismissed by the district court upon the filing in that court of a stipulation for dismissal signed by all the parties, or upon motion and notice by the appellant. (b) Dismissal in the Court of Appeals. If the parties to an appeal or other proceeding shall sign and file with the clerk of the court of appeals an agree- ment that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court. Rule 43. Substitution of Parties (a) Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court of appeals, the personal representa- tive of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the court of appeals. The motion of a party shall be served upon the representati\e in accordance with the provi- sions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct. If a party against uhom an appeal may be taken dies after entry of a judgment or order in the district court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed substitution shall be effected in the court of appeals in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by the party's personal representative, or, if no personal representative, by that party's attorne> of record within the time 220 Selected Federal Rules of Appellate Procedure Rule 45 prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the court of appeals in accordance with this subdivision. As amended Mar. 10, 1986, eft". July 1, 1986. (b) Substitution for Other Causes. If substitution of a party in the court of appeals is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a). (c) Public Officers; Death or Separation from Office. (1) When a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misno- mer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) When a public officer is a party to an appeal or other proceeding in an official capacity that public officer may be described as a party by his official title rather than by name; but the court may require the public officer's name to be added. As amended Mar. 10, 1986, eff. July 1, 1986. Rule 44. Cases Involving Constitutional Questions Where United States Is Not a Party It shall be the duty of a party who draws in question the constitutionality of any Act of Congress in any proceeding in a court of appeals to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the court of appeals, to give imme- diate notice in writing to the court of the existence of said question. The clerk shall thereupon certify such fact to the Attorney General. Rule 45. Duties of Clerks (a) General Provisions. [Omitted] (b) The Docket; Calendar; Other Records Required. [Omitted] 221 Rule 45 Selected Federal Rules of Appellate Procedure (c) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order or judgment, and shall make a note in the docket of the mailing. Service on a party represented by counsel shall be made on counsel. (d) Custody of Records and Papers. [Omitted] Rule 46. Attorneys (a) Admission to the Bar of a Court of Appeals; Eligibility; Procedure for Admission. An attorney who has been admitted to practice before the Supreme Court of the United States, or the highest court of a state, or another United States court of appeals, or a United States district court (including the district courts for the Canal Zone, 'Guam and the Virgin Islands), and who is of good moral and professional character, is eligible for admission to the bar of a court of appeals. An applicant shall file with the clerk of the court of appeals, on a form approved by the court and furnished by the clerk, an application for admission containing the applicant's personal statement showing eligibility for member- ship. At the foot of the application the applicant shall take and subscribe to the following oath or affirmation: I, , do solemnly swear (or affirm) that 1 will demean myself as an attorney and counselor of this court, uprightly and according to law; and that 1 will support the Constitution of the United States. Thereafter, upon written or oral motion of a member of the bar of the court, the court will act upon the application. An applicant may be admitted by oral motion in open court, but it is not necessary that the applicant appear before the court for the purpose of being admitted, unless the court shall otherwise order. An applicant shall upon admission pay to the clerk the fee prescribed by rule or order of the court. As amended Mar. 10, 1986, eff. July 1, 1986. (b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why the member should not be suspended or disbarred. Upon the member's response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order. As amended Mar. 10, 1986, eff. July 1. 1986. 222 Selected Federal Rules of Appellate Procedure Rule 48 (c) Disciplinary Power of the Court over Attorneys. A court of appeals may, after reasonable notice and an opportunit)' to show cause to the contran., and after hearing, if requested, take an\ appropriate disciplinar\ action against any attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with these rules or any rule of the court. Rule 47. Rules by Courts of Appeals Each court of appeals by action of a majorit) of the circuit judges in regular active ser\ice may from time to time make and amend rules governing its practice not inconsistent with these rules. In all cases not pro\ ided for by rule, the courts of appeals may regulate their practice in any manner not inconsistent with these rules. Copies of all rules made by a court of appeals shall upon their promulgation be furnished to the Administrative Office of the United States Courts. Rule 48. Title These rules may be known and cited as the Federal Rules of Appellate Procedure. [The Federal Rules of Appellate Procedure was adopted December 4, 1967, effective July 1, 1968. The effective date of amendments to rules included above are indicated there.] 223 SELECTED PROVISIONS FROM THE CONSTITUTION OF THE UNITED STATES .\rticle I Article III .\rticle I\' Article \I Amendment I .Amendment IN' Amendment \ Amendment \1 Amendment VTI Amendment Mil Amendment W Amendment X .\mendment \I Amendment \I\' We the People of the United States, in Order to form a more perfect Union, estabhsh Justice, insure domestic Tranquility, provide for the common de- fence, promote the general Welfare, and secure the Blessings of Libert\ to ourseKes and our Posterit\. do ordain and establish this Constitution for the United States of America. Article I Section 8. The Congress shall ha\e Power To lay and collect Taxes, Duties, 225 Article I Selected Provisions from the Constitution of the United States Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Lav\s on the subject of Bankruptcies throughout the L'nited States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Co\ernment and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers. and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such Dis- trict (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Govern- ment of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings; — And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. 226 Selected Pro\isions from the Constitution of the United States Article fV' Article III Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, v\hich shall not be dimin- ished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equitv', arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty' and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — be- tween Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citi- zens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Partv , the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may bv- Law have directed. Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of Kvo Witnesses to the same overt Act or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained. Article IV Section I . Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress 227 Article IV Selected Provisions from the Constitution of the United States may by general Laus prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be deli\'ered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Serxice or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be deli\ercd up on Claim of the Party to whom such Service or Labour may be due. Section 3. New States may be admitted by the Congress into this L'nion; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State by formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be con\ened) against domestic Violence. Article VI All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the Lhiited States under this Consti- tution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary nohvithstanding. The Senators and Representatixes before mentioned, and the Members of the several State Legislatures, and all executixe and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirma- tion, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. 228 Selected Provisions from the Constitution of the United States Amendment \'II Amendment I Congress shall make no law respecting an establishment of religion, or prohib- iting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceabK to assemble, and to petition the Government for a redress of grie\ances. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported b\ Oath or affir- mation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jur\', except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, libert>', or property, without due process of law; nor shall private propert)' be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speed\' and public trial, by an impartial jury of the State and district wherein the crime shall ha\e been committed, which district shall have been previously ascertained by law , and to be informed of the nature and cause of the accusation; to be con- fronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Amendment VII In Suits at common law. where the value in controversy shall exceed tvvent\ dollars, the right of trial bv' jun- shall be preserved, and no fact tried by a jurv'. 229 Amendment VII Selected Pro\ isions froni the Constitution of the United States shall be otherwise reexamined in any Court of the United States, than accord- ing to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to dcn\ or disparage others retained b\ the people. Amendment X The pov\ers not delegated to the United States by the Constitution, nor prohib- ited by it to the States, are reserved to the States respectively, or to the people. Amendment XI The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Amendment XIV Section I. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the L'nited States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the L'nited States: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. . . . 230 Selected Provisions from the Constitution of the United States Amendment XIV Section 3. No person shall be a Senator or Representatne in Congress, or elector of President and Vice President, or hold any office, civil or militan, under fhe United States, or under any State, who, haxing previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof But Congress may by a vote of hvo-thirds of each House, remove such disabilitv'. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of jjensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, bv appropriate legisla- tion, the provisions of this article. 231 SELECTED PROVISIONS FROM UNITED STATES CODE, TITLE 28 Judiciary and Judicial Procedure TABLE OF PROVISIONS Part I. Organization of Courts Chapter 1. Supreme Court 3. Court of Appeals 5. District Courts 15. Conferences and Councils of Judges 17. Resignation and Retirement of Justices and Judges 21. General Provisions Applicable to Courts and Judges Part ni. Court Officers and Employees Chapter 43, llnited States Magistrates Part rV. Jurisdiction and Venue Chapter 81. Supreme Court Court of Appeals District Courts; Jurisdiction District Courts; Venue District Courts; Removal of Cases from State Courts General Provisions Part V. Procedure Chapter 111. General Provisions 113. Process 115. Evidence; Documentary 117. Evidence; Depositions 119. Evidence; Witnesses 121. Juries; Trial by Jury 123. Fees and Costs 125. Pending Actions and Judgments 127. Executions and Judicial Sales 129. Moneys Paid into Court 131. Rules of Courts 133. Review — Miscellaneous Provisions 233 Selected Provisions from Title 28 Part VI. Particular Proceedings Chapter 151. Declaratory ludgments 155. Injunctions; Three-Judge Courts 1 59. Interpleader 161. United States as Parh Generailv Part I. Organization of Courts Chapter 1. Supreme Court S 1 . Number of justices; quorum The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. S2. Terms of court The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary. S3. Vacancy in office of Chief Justice; disability Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified. S4- Precedence of associate justices Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have prece- dence according to seniority in age. S5. Salaries of justices The Chief Justice and each associate justice shall each receive a salary at 234 Selected Provisions from Title 28 Section 44 annual rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title. Chapter 3. Court of Appeals )i41. Number and composition of circuits The thirteen judicial circuits of the United States are constituted as follows: Circuits District of Columbia First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Federal Composition District of Columbia. Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island. Connecticut, New York, Vermont. Delaware, New jersey, Pennsylvania, Virgin Islands. Maryland, North Carolina, South Carolina, Virginia, West Virginia. District of the Canal Zone, Louisiana, Missis- sippi, Texas. Kentucky, Michigan, Ohio, Tennessee. Illinois, Indiana, Wisconsin. Arkansas, Iowa, Minnesota, Missouri, Nebras- ka, North Dakota, South Dakota. Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Cuam, Hawaii Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming. Alabama, Florida, Georgia. All Federal judicial districts. S43. Creation and composition of courts (1) There shall be in each circuit a court of appeals, which shall be a court of record, known as the United States Court of Appeals for the circuit. (b) Each court of appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the court. ^44. Appointment, tenure, residence and salary of circuit judges (a) The President shall appoint, by and with the advice and consent of the Senate, circuit judges for the several circuits as follows: 235 Section 44 Selected Provisions from Title 28 Circuits Number of Judges District of Columbia 12 First 6 Second 1 3 Third 12 Fourth 1 1 Fifth 16 Sixth 15 Seventh 1 1 Eighth 10 Ninth 28 Tenth 10 Eleventh 12 Federal 12 (b) Circuit judges shall hold office during good behavior. (c) Except in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service. While in active service, each circuit judge of the Federal judicial circuit appointed after the effective date of this Act, and the chief judge of the Federal Judicial Circuit, whene\er appointed, shall reside within fifty miles of the District of Columbia. (d) Each circuit judge shall recei\e a salary at an annual rate determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by section 461 of this title. J45. Chief judges; precedence of judges (a)(1) The chief judge of the circuit shall be the circuit judge in regular active service who is senior in commission of those judges who — (A) are sixt)'-four years of age or under; (B) have served for one year or more as a circuit judge; and (C) have not served previously as chief judge. (2)(A) In any case in which no circuit judge meets the qualifications of paragraph (1), the youngest circuit judge in regular active senice who is sixty-five years of age or over and who has served as circuit judge for one year or more shall act as the chief judge. (B) In any case under subparagraph (A) in which there is no circuit judge in regular active ser\ice who has served as a circuit judge for one year or more, the circuit judge in regular active service who is senior in commission and who has not ser\ed previously as chief judge shall act as the chief judge. (3)(A) Except as provided in subparagraph (C), the chief judge of the 236 Selected Provisions from Title 28 Section 46 circuit appointed under paragraph (1 1 shall ser\e for a term of seven years and shall ser\e after expiration of such term until another judge is eligible under paragraph (1) to serve as chief judge of the circuit. (B) Except as provided m subparagraph (C), a circuit judge acting as chief judge under subparagraph (A) or (B) of paragraph (2) shall serve unhl a judge has been appointed who meets the qualifications under paragraph (1). (C) No circuit judge may serve or act as chief judge of the circuit after attaining the age of se\enty years unless no other circuit judge is qualified to serve as chief judge of the circuit under paragraph (1) or is qualified to act as chief judge under paragraph (2). (b) The chief judge shall ha\e precedence and preside at any session of the court which he attends. Other circuit judges of the court in regular active service shall ha\e precedence and preside according to the seniorit>' of their commissions. Judges whose commissions bear the same date shall ha\e prece- dence according to seniorih' in age. The circuit justice, however, shall have precedence over all the circuit judges and shall preside at any session which he attends. (c) If the chief judge desires to be relie\ed of his duties as chief judge while retaining his acti\e status as circuit judge, he may so certify to the Chief justice of the United States, and thereafter the chief judge of the circuit shall be such other circuit judge who is qualified to serve or act as chief judge under subsec- tion (a). (d) If a chief judge is temporarily unable to perform his duties as such, they shall be performed by the circuit judge in active service, present in the circuit and able and qualified to act, who is next in precedence. S46. Assignment of judges; panels; he.arings; quorum (a) Circuit judges shall sit on the court and its panels in such order and at such times as the court directs. (b) In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailabilih- of a judge of the court because of illness. Such panels shall sit at the times and places and hear the cases and controversies assigned as the court directs. The United States Court of Appeals for the Federal Circuit shall determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and, notwithstanding the first sentence of this subsection, may determine 237 Section 46 Selected Provisions from Title 28 by rule the number of judges, not less than three, who constitute a panel. (c) Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service, or such number of judges as may be prescribed in accordance with section 6 of Public Law 95-486 (92 Stat. 1633), except that any senior circuit judge of the circuit shall be eligible to participate, at his election and upon designation and assign- ment pursuant to section 294(c) of this title and the rules of the circuit, as a member of an in banc court reviewing a decision of a panel of which such judge was a member. (d) A majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (c), shall constitute a quorum. S47. Disqualification of trial judge to hear appeal No judge shall hear or determine an appeal from the decision of a case or issue tried by him. S48. Terms of court (a) The courts of appeals shall hold regular sessions at the places listed below, and at such other places within the respective circuit as each court may desig- nate by rule. Ci rcuits Places District of Columbia Washington First Boston Second New York Third Philadelphia Fourth Richmond, Asheville Fifth New Orleans, Fort Worth, Jackson Sixth Cincinnati Seventh Chicago Eighth St. Louis, Kansas City, Omaha, St. Paul Ninth San Francisco, Los Angeles, Portland, Seattle Tenth Denver, Wichita, Oklahoma City 238 Selected Provisions from Title 28 Section 133 Eleventh Atlanta, Jacksonville, Montgomery Federal District of Columbia, and in any other place listed above as the court by rule directs (b) Each court of appeals may hold special sessions at any place within its circuit as the nature of the business may require, and upon such notice as the court orders. The court may transact any business at a special session which it might transact at a regular session. (c) Any court of appeals may pretermit, with the consent of the Judicial Conference of the United States, any regular session of court at any place for insufficient business or other good cause. (d) The times and places of the sessions of the Court of Appeals for the Federal Circuit shall be prescribed with a view to securing reasonable opportu- nity to citizens to appear before the court with as little inconvenience and expense to citizens as is practicable. Chapter 5. District Courts ^132. Creation and composition of district courts (a) There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district. (b) Each district court shall consist of the district judge or judges for the district in regular active ser\'ice. Justices or judges designated or assigned shall be competent to sit as judges of the court. (c) Except as otherwise provided by law, or rule or order of court, the judicial power of a district court with respect to any action, suit or proceeding may be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges. SI 33. Appointment and number of district judges The President shall appoint, by and with the advice and consent of the Senate, district judges for the several judicial districts, as follows: Districts Judges Alabama: Northern 7 Middle 3 Southern 3 Alaska 3 Arizona 8 239 Section 133 ^e ected f rovis Arkansas: Eastern 3 Western 1 Eastern and Western 2 California; Northern 12 Eastern 6 Central 22 Southern 7 Colorado 7 Connecticut 6 Delaware 4 District of Columbia 15 Florida: Northern 3 Middle 9 Southern 15 Georgia: Northern 11 Middle 3 Southern 3 Hawaii 3 Idaho 2 Illinois: Northern 20 Central 3 Southern 3 Indiana: Northern 4 Southern 5 Iowa: Northern 1 Southern 2 Northern and Southern 1 Kansas 5 Kentucky: Eastern 4 Western 4 Eastern and Western 1 Louisiana: Eastern 13 Middle 2 Western 6 Maine 2 Maryland 10 Massachusetts 11 Selected Provisions from Title 28 240 iions from Title 28 Section 135 Michigan: Eastern 15 Western 4 Minnesota 7 Mississippi: Northern 3 Southern 5 Missouri: Eastern 5 Western 5 Eastern and Western 2 Montana 3 Nebraska 3 Nevada 4 New Hampshire 2 New Jersey 14 New Mexico 4 New York: Northern 4 Southern 27 Eastern 12 Western 3 North CaroHna: Eastern 3 Western 3 Middle 3 North Dakota 2 Ohio: Northern 10 Southern 7 Oklahoma: Northern 2 Eastern 1 Western 4 Northern, Eastern, and Western 2 Oregon 5 Pennsylvania: Eastern 19 Middle 5 Western 10 Puerto Rico 7 Rhode Island 3 South Carolina 8 South Dakota 3 Tennessee: Eastern 4 241 Section 133 Selected Provisions from Title 28 Middle 3 Western 4 Texas: Northern 10 Eastern 6 Southern 1 3 Western 7 Utah 4 Vermont 2 Virginia: Eastern 9 Western 4 Washington: Eastern 3 Western 6 West Virginia: Northern 2 Southern 4 Wisconsin: Eastern 4 Western 2 Wyoming 2 S 1 36. Chief judges; precedence of district judges (a)(1) In any district having more than one district judge, the chief judge of the district shall be the district judge in regular active service who is senior in commission of those judges who — (A) are sixty-four years of age or under; (B) have served for one year or more as a district judge; and (C) have not served previously as chief judge. (2)(A) In any case in which no district judge meets the qualifications of paragraph (1), the youngest district judge in regular active service who is sixty-five years of age or o\er and who has served as district judge for one year or more shall act as the chief judge. (B) In any case under subparagraph (A) in which there is no district judge in regular active service who has served as a district judge for one year or more, the district judge in regular active service who is senior in commission and who has not served previously as chief judge shall act as the chief judge. (3)(A) Except as provided in subparagraph (C), the chief judge of the dis- trict appointed under paragraph (1) shall serve for a term of seven years and shall serve after expiration of such term until another judge is eligible under paragraph (1) to serve as chief judge of the district. (B) Except as pro\ided in subparagraph (C), a district judge acting as 242 Selected Provisions from Title 28 Section 144 chief judge under subparagraph (A) or (B) of paragraph (2) shall serve until a judge has been appointed who meets the qualifications under paragraph (1). (C) No district judge may serve or act as chief judge of the district after attaining the age of seventy years unless no other district judge is qualified to serve as chief judge of the district under paragraph (1) or is qualified to act as chief judge under paragraph (2). (b) The chief judge shall have precedence and preside at any session which he attends. Other district judges shall have precedence and preside according to the seniority of their commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age. (c) A judge whose commission extends over more than one district shall be junior to all district judges except in the district in which he resided at the time he entered upon the duties of his office. (d) If the chief judge desires to be relieved of his duties as chief judge while re- taining his active status as district judge, he may so certif\' to the Chief Justice of the United States, and thereafter the chief judge of the district shall be such other district judge who is qualified to serve or act as chief judge under subsection (a). (e) If a chief judge is temporarily unable to perform his duties as such, they shall be performed by the district judge in active service, present in the district and able and qualified to act, who is next in precedence. ^137. Division of business among district judges The business of a court having more than one judge shall be di\ided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial of the circuit shall make. S143, Vacant judgeship as affecting proceedings When the office of a district judge becomes vacant, all pending process, pleadings and proceedings shall, when necessary, be continued by the clerk until a judge is appointed or designated to hold such court. S144. Bias or prejudice of judge Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse 243 Section 144 Selected Provisions from Title 28 party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. Chapter 15. Conferences and Councils of Judges !i351. Judicial Conference of the United States The Chief Justice of the United States shall summon annually the chief judge of each judicial circuit and a district judge from each judicial circuit to a conference at such time and place in the United States as he may designate. He shall preside at such conference which shall be known as the Judicial Conference of the United States. Special sessions of the conference may be called by the Chief Justice at such times and places as he may designate. The district judge to be summoned from each judicial circuit shall be chosen by the circuit and district judges of the circuit at the annual judicial conference of the circuit held persuant to section 533 of this title and shall sen-e as a member of the conference for three successive years, except that in the year following the enactment of this amended section the judges in the first, fourth, seventh, and tenth circuits shall choose a district judge to serve for one year, the judges in the second, fifth, and eighth circuits shall choose a district judge to serve for two years and the judges in the third, sixth, ninth, and District of Columbia circuits shall choose a district judge to serve for three years. If the chief judge of any circuit or the district judge chosen by the judges of the circuit is unable to attend, the Chief Justice may summon any other circuit or district judge from such circuit. Every judge summoned shall attend and, unless excused by the Chief Justice, shall remain throughout the sessions of the conference and advise as to the needs of his circuit or court and as to any matters in respect of which the administration of justice in the courts of the United States may be improved. The Conference shall make a comprehensive survey of the condition of busi- ness in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary. It shall also submit suggestions and recommendations to the various courts to promote uniformity of manage- ment procedures and the expeditious conduct of court business. The Conference is authorized to exercise the authority provided in section 372(c) of this title as the Conference, or through a standing committee. If the Conference elects to establish a standing committee, it shall be appointed by the Chief Justice and all petitions for review shall be reviewed by that committee. The Conference or the 244 Selected Provisions from Title 28 Section 372 standing committee may hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the Supreme Court or by the clerk of any court of appeals, at the direction of the Chief Justice or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or any agency thereof The Conference may also prescribe and modif\' rules for the exercise of the authorib.' provided in section 372(c) of this title. All judicial officers and employees of the United States shall promptly carry into effect all orders of the Judicial Conference or the standing committee established pursuant to this section. The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and addition to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administra- tion, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law. The Attorney General shall, upon request of the Chief Justice, report to such conference on matters relating to the business of the several courts of the United States, with particular reference to cases to which the United States is a party. The Chief Justice shall submit to Congress an annual report of the proceed- ings of the Judicial Conference and its recommendations for legislation. Chapter 17. Resignation and Retirement of Justices and Judges ^372. Retirement for disability; substitute judge on failure to retire; judicial discipline (a) Any justice or judge of the United States appointed to hold office during good behavior who becomes permanently disabled from performing his duties may retire from regular active service, and the President shall, by and with the advice and consent of the Senate, appoint a successor. Any justice or judge of the United States desiring to retire under this section shall certify to the President his disability in writing. Whenever an associate judge of the Supreme Court, a chief judge of a circuit or the chief judge of the Court of International Trade, desires to retire under this section, he shall furnish to the President a certificate of disability signed by the Chief Justice of the United States. A circuit or district judge, desiring to retire under this section, shall furnish to the President a certificate of disabilit>' signed by the chief judge of his circuit. 245 Section 372 Selected Provisions from Title 28 A judge of the Court of International Trade desiring to retire under this section, shall furnish to the President a certificate of disabilitv' signed by the chief judge of his court. Each justice or judge retiring under this section after serving ten years con- tinuously or otherwise shall, during the remainder of his lifetime, receive the salary of the office. A justice or judge retiring under this section who has served less than ten years in all shall, during the remainder of his lifetime, receive one-half the salary of the office. (b) Whenever any judge of the United States appointed to hold office during good behasior who is eligible to retire under this section does not do so and a certificate of his disability signed by a majority of the members of the Judicial Council of his circuit in the case of a circuit or district judge, or by the Chief Justice of the United States in the case of the Chief Judge of the Court of International Trade, or by the chief judge of his court in the case of a judge of the Court of International Trade, is presented to the President and the Presi- dent finds that such judge is unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability and that the ap- pointment of an additional judge is necessary for the efficient dispatch of business, the President may make such appointment by and with the advice and consent of the Senate. Whenever any such additional judge is appointed, the vacancy subsequently caused by the death, resignation, or retirement of the disabled judge shall not be filled. Any judge whose disabilih- causes the ap- pointment of an additional judge shall, for purpose of precedence, service as chief judge, or temporary performance of the duties of that office, be treated as junior in commission to the other judges of the circuit, district, or court. (c)(1) Any person alleging that a circuit, district, or bankruptcy judge, or a magistrate, has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. (2) Upon receipt of a complaint filed under paragraph (1) of this subsec- tion, the clerk shall promptly transmit such complaint to the chief judge of the circuit, or, if the conduct complained of is that of the chief judge, to that circuit judge in regular active ser\ice next senior in date of commission (hereafter, for purposes of this subsection only, included in the term "chief judge"). The clerk shall simultaneously transmit a copy of the complaint to the judge or magistrate whose conduct is the subject of the complaint. (3) After expeditiously reviewing a complaint, the chief judge, by written order stating his reasons, may — (A) dismiss the complaint, if he finds it to be (i) not in conformity with paragraph (1) of this subsection, (ii) directly related to the merits of a decision or procedural ruling, or (iii) frivolous; or 246 Selected Provisions from Title 2S Section 3~2 (B) conclude the proceeding if he finds that appropriate corrective ac- tion has been taken. TTie chief judge shall transmit copies of his written order to the complainant and to the judge or magistrate whose conduct is the subject of the complaint. i4i If the chief judge does not enter an order under {jaragraph (5) of this subsection, such judge shall prompdy — (A) appoint himself and equal numbers of circuit and district judges of the circuit to a sp>ecial committee to investigate the facts and allega- tions contained in the complaint; (B) certif. the complaint and any other documents pertaining thereto to each member of such committee; and id proude written notice to the complainant and the judge or magis- trate whose conduct is the subject of the complaint of the action taken under this paragraph. (5) Each committee appointed under paragraph i4) of this subsection shall conduct an investigation as extensive as it considers necessan. and shall exjjeditiously file a comprehensive wTitten repwrt thereon with the judicial council of the circuit. Such report shall present both the findings of the in\ estigabon and the committees recommendations for necessan' and appropriate action by the judicial council of the circuit. (6) Upon receipt of a report filed under paragraph (5) of this subsection, the judicial council — (A) may conduct any additional investigation which it considers to be necessapi; (B) shall take such action as is appropriate to assure the eflFective and expeditious administration of the business of the courts within the circuit, including, but not limited to, any of the following actions: (i) directing the chief judge of the district of the magistrate whose conduct is the subject of the complaint to take such action as the judicial council considers appropriate; (ii) certifying disabilit> of a judge appKDinted to hold office during good behavior whose conduct is the subject of the complaint, punuant to the procedures and standards pro\ided under subsection ibi of this section; (iii) requesting that any such judge appwinted to hold office dur- ing good behavior voluntarily retire, with the provision that the length of senice requirements under section 3~1 of this title shall not apply; (iv) ordering that, on a temf)orary basis for a time certain, no fiirther cases be assigned to an\' judge or magistiate whose conduct is the subject of a complaint; (v) censuring or reprimanding such judge or magistrate by means of private communication; (vi) censuring or reprimanding such judge or magistiate by means of public announcement; or 247 Section 372 Selected Provisions from Title 28 (vii) ordering such other action as it considers appropriate under the circumstances, except that (I) in no circumstances may the council order removal from office of any judge appointed to hold office during good behavior, and (II) any removal of a magistrate shall be in accordance with section 63 1 of this title and any removal of a bankruptcy judge shall be in accor- dance with section 152 of this title; and (C) shall immediately provide written notice to the complainant and to such judge or magistrate of the action taken under this paragraph. (7)(A) In addition to the authority granted under paragraph (6) of this subsection, the judicial council may, in its discretion, refer any complaint under this subsection, together with the record of any associated proceedings and its recommendations for appropriate ac- tion, to the Judicial Conference of the United States. (B) In any case in which the judicial council determines, on the basis of a complaint and an investigation under this subsection, or on the basis of information otherwise available to the council, that a judge appointed to hold office during good behavior has engaged in conduct — (i) which might constitute one or more grounds for impeach- ment under article I of the Conshtution; or (ii) which, in the interest of justice, is not amenable to resolu- tion by the judicial council, the judicial council shall promptly certify such determination, together with any complaint and a record of any associated proceedings, to the Judicial Conference of the United States. (C) A judicial council acting under authority of this paragraph shall, unless contrary to the interests of justice, immediately submit writ- ten notice to the complainant and to the judge or magistrate whose conduct is the subject of the action taken under this paragraph. (8) Upon referral or certification of any matter under paragraph (7) of this subsection, the Judicial Conference, after consideration of the prior proceedings and such additional investigation as it considers appropri- ate, shall by majority' vote take such action, as described in paragraph (6)(B) of this subsection, as it considers appropriate. If the Judicial Conference concurs in the determination of the council, or makes its own determination, that consideration of impeachment may be war- ranted, it shall so certify' and transmit the determinahon and the rec- ord of proceedings to the House of Representahves for whatever action the House of Representatives considers to be necessarv . (9)(A) In conducting any investigation under this subsection, the judicial council, or a special committee appointed under paragraph (4) of this subsection, shall have full subpoena powers as pro\'ided in section 332 (d) of this title. 248 Selected Provisions from Title 28 Section 372 (B) In conducting any investigation under this subsection, the Judicial Conference, or a standing committee appointed by the Chief Jus- tice under section 331 of this title, shall have full subpoena powers as provided in that section. (10) A complainant, judge, or magistrate aggrieved by a final order of the chief judge under paragraph (3) of this subsection may petition the judicial council for review thereof A complainant, judge, or magis- trate aggrieved by an action of the judicial council under paragraph (6) of this subsection may petition the Judicial Conference of the United States for review thereof The Judicial Conference, or the standing committee established under section 331 of this title, may grant a petition filed by a complainant, judge, or magistrate under this paragraph. Except as expressly provided in this paragraph, all orders and determinations, including denials of petitions for review, shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise. (11) Each judicial council and the Judicial Conference may prescribe such rules for the conduct of proceedings under this subsection, including the processing of petitions for review, as each considers to be appropriate. Such rules shall contain provisions requiring that — (A) adequate prior notice of any investigation be given in writing to the judge or magistrate whose conduct is the subject of the complaint; (B) the judge or magistrate whose conduct is the subject of the com- plaint be afforded an opportunity to appear (in person or by coun- sel) at proceedings conducted by the investigating panel, to present oral and documentary evidence, to compel the attendance of wit- nesses or the production of documents, to cross-examine witnesses, and to present argument orally or in writing; and (C) the complainant be afforded an opportunity to appear at proceed- ings conducted by the investigating panel, if the panel concludes that the complainant could offer substantial information. Any rule promulgated under this subsection shall be a matter of public record, and any such rule promulgated by a judicial council may be modified by the Judicial Conference. (12) No judge or magistrate whose conduct is the subject of an investiga- tion under this subsection shall serve upon a special committee appointed under paragraph (4) of this subsection, upon a judicial council, upon the Judicial Conference, or upon the standing com- mittee established under section 331 of this title, until all related proceedings under this subsection have been finally terminated. (13) No person shall be granted the right to intervene or to appear as amicus curiae in any proceeding before a judicial council or the Judicial Conference under this subsection. (14) All papers, documents, and records of proceedings related to investi- 249 Section 372 Selected Provisions from Title 28 gations conducted under this subsection shall be confidential and shall not be disclosed by any person in any proceeding unless — (A) the judicial council of the circuit, the Judicial Conference of the United States, or the Senate or the House of Representatives by resolution, releases any such material which is belie\ed necessary to an impeachment in\estigation or trial of a judge under article I of the Constitution; or (B) authorized in writing by the judge or magistrate who is the subject to the complaint and by the chief judge of the circuit, the Chief Justice, or the chanman of the standing committee established under section 331 of this title. (15) Each written order to implement any action under paragraph (6)(B) of this subsection, which is issued by a judicial council, the Judicial Conference, or the standing committee established under section 331 of this title, shall be made available to the public through the appro- priate clerk's office of the court of appeals for the circuit. Unless contrary to the interests of justice, each such order issued under this paragraph shall be accompanied by written reasons therefor. (16) Except as expressly provided in this subsection, nothing in this sub- section shall be construed to affect any other provision of this title, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of Appellate Procedure, or the Federal Rules of Evidence. (17) The United States Claims Court, the Court of International Trade, and the Court of Appeals for the Federal Circuit shall each prescribe rules, consistent with the foregoing provisions of this subsection, establishing procedures for the filing of complaints with respect to the conduct of any judge of such court and for the investigation and resolution of such complaints. In investigating and taking action with respect to any such complaint, each such court shall have the powers granted to a judicial council under this subsection. Chapter 21. General Provisions Applicable to Courts and Judges 5454. Practice of law by justices and judges Any justice or judge appointed under the authority' of the United States who engages in the practice of law is guilt)' of a high misdemeanor. 5455. Disqualification of justice, judge, magistrate, or referee in bankruptcy (a) An\' justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be ques- tioned. 250 Selected Provisions from Title 28 Section 455 (b) He shall also disqualifs' himself in the following circumstances: ( 1 ) Where he has a personal bias or prejudice concerning a part\', or personal knowledge of disputed evidentiar\- facts concerning the proceeding; (2) Where in pri\ate practice he served as lawyer in the matter in contro- versy, or a lawyer with whom he previously practiced law served dur- ing such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has sened in governmental employment and in such capac- ity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the par- ticular case in controversy; (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) Is a party to the proceeding, or an officer, director, or trustee of a party; (ii) Is acting as a lawyer in the proceeding; (iii) Is known by the judge to have an interest that could be substan- tially affected by the outcome of the proceeding; (iv) Is to the judge's knowledge likely to be a material witness in the proceeding. (c) A judge should inform himself about his personal and fiduciary' financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. (d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation; (2) the degree of relationship is calculated according to the civil law system; (3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian; (4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that: (i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund; (ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization; 251 Section 455 Selected Provisions from Title 28 (ill) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organiza- tion only if the outcome of the proceeding could substantially affect the value of the interest; (iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities. (e) No justice, judge, magistrate, or referee in bankruptcy shall accept from the parties to the proceedings a waiver of any ground for disqualification enu- merated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. Part III. Court Officers and Employees Chapter 43. United States Magistrates ^631. Appointment AND TENURE (a) The judges of each United States district court and the district court of the Virgin Islands shall appoint United States magistrates in such numbers and to serve at such locations within the judicial district as the conference may deter- mine under this chapter. In the case of a magistrate appointed by the district court of the Virgin Islands, this chapter shall apply as though the court ap- pointing such magistrate were a United States district court. Where there is more than one judge of a district court, the appointment, whether an original appointment or a reappointment, shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge. Where the conference deems it desirable, a magistrate may be designated to serve in one or more districts adjoining the district for which he is appointed. Such a designation shall be made by the concurrence of a majority of the judges of each of the district courts involved and shall specify the duties to be performed by the magistrate in the adjoining district or districts. (b) No individual may be appointed or serve as a magistrate under this chapter unless: (1) He is, and has been for at least 5 years, a member in good standing of the bar of the highest court of the State in which he is to serve, or, in the case of an indi\idual appointed to serve — (A) in the District of Columbia, a member in good standing of the bar of the United States district court for the District of Columbia; (B) in the Commonwealth of Puerto Rico, a member in good standing of the bar of the Supreme Court of Puerto Rico, and in the Virgin 252 Selected Provisions from Title 28 Section 63 1 Islands of the United States, a member in good standing of the bar of the district court of the Virgin Islands; except that an individual who does not meet the bar membership requirements of the first sentence of this paragraph may be appointed and serve as a part-time magistrate if the appointing court or courts and the conference find that no qualified individual who is a member of the bar is available to serve at a specific location; (2) He is determined by the appointing district court or courts to be competent to perform the duties of the office; (3) In the case of an individual appointed to serve in a national park, he resides within the exterior boundaries of that park, or at some place reasonably adjacent thereto; (4) He is not related by blood or marriage to a judge of the appointing court or courts at the time of his initial appointment; and (5) He is selected pursuant to standards and procedures promulgated by the Judicial Conference of the United States. Such standards and procedures shall contain provision for notice of all vacancies in magis- trate positions and for the establishment by the district courts of merit selection panels, composed of residents of the individual judicial dis- tricts, to assist the courts in identifying and recommending persons who are best qualified to fill such positions. (c) A magistrate may hold no other civil or military office or employment under the United States: Provided, however. That, with the approval of the conference, a part-time referee in bankruptcy or a clerk or deputy clerk of a court of the United States may be appointed and serve as a part-time United States magistrate, but the conference shall fix the aggregate amount of compen- sation to be received for performing the duties of part-time magistrate and part-time referee in bankruptcy, clerk or deputy clerk: And provided further. That retired officers and retired enlisted personnel of the Regular and Reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Guard, members of the Reserve components of the Army, Navy, Air Force, Marine Corps, and Coast Cuard, and members of the Army National Guard of the United States, the Air National Guard of the United States, and the Naval Militia and of the National Guard of a State, territory, or the District of Columbia, except the National Guard disbursing officers who are on a full- time salary basis, may be appointed and serve as United States magistrates. (d) No individual may serve under this chapter after having attained the age of seventy years: Provided, however. That upon the unanimous vote of all the judges of the appointing court or courts, a magistrate who has attained the age of seventy years may continue to serve and may be reappointed under this chapter. (e) The appointment of any individual as a full-time magistrate shall be for a term of eight years, and the appointment of any mdividuals as a part-time magistrate shall be for a term of four years, except that the term of a full-time or part-time magistrate appointed under subsection (j) shall expire upon — 253 Section 63 1 Selected Provisions from Title 28 (1) the expiration of the absent magistrate's term, (2) the reinstatement of the absent magistrate in regular service in office as a magistrate, (3) the failure of the absent magistrate to make timely application under subsection (i) of this section for reinstatement in regular service in office as a magistrate after discharge or release from military service, (4) the death or resignation of the absent magistrate, or (5) the removal from office of the absent magistrate pursuant to subsection (h) of this section, whichever may first occur. (f) Upon the expiration of his term, a magistrate may, by a majority vote of the judges of the appointing district court or courts and with the approval of the judicial council of the circuit, continue to perform the duties of his office until his successor is appointed, or for 60 days after the date of the expiration of the magistrate's term, whichever is earlier. (g) Each individual appointed as a magistrate under this section shall take the oath or affirmation prescribed by section 453 of this title before performing the duties of his office. (h) Each appointment made by a judge or judges of a district court shall be entered of record in such court, and notice of such appointment shall be given at once by the clerk of that court to the Director. (i) Removal of a magistrate during the term for which he is appointed shall be only for incompetency, misconduct, neglect of duty, or physical or mental disability, but a magistrate's office shall be terminated if the conference deter- mines that the services performed by his office are no longer needed. Re- moval shall be by the judges of the district court for the judicial district in which the magistrate serves; where there is more than one judge of a district court, removal shall not occur unless a majority of all the judges of such court concur in the order of removal; and when there is a tie vote of the judges of the district court on the question of the removal or retention in office of a magistrate, then removal shall be only by a concurrence of a majority of all the judges of the council. In the case of a magistrate appointed under the third sentence of subsection (a) of this section, removal shall not occur unless a majority of all the judges of the appointing district courts concur in the order of removal; and where there is a tie vote on the question of the removal or retention in office of a magistrate, then removal shall be only by a concurrence of a majority of all the judges of the council or councils. Before any order or removal shall be entered, a full specification of the charges shall be furnished to the magistrate, and he shall be accorded by the judge or judges of the remo\ing court, courts, council, or councils an opportunity to be heard on the charges. (j) (1) A magistrate who is inducted into the Armed Forces of the United States pursuant to the Military Selective Service Act of 1967 (50 U.S.C. App. 451 et seq.), or is otherwise ordered to active duty with such forces for a period of more than thirty days, and who makes application for a leave of absence to 254 Selected Provisions from Title 28 Section 636 the district court or courts, which appointed him, shall be granted a leave of absence without compensation for such period as he is required to serve in such forces. Every application for a leave of absence under this subsection shall include a copy of the official orders requiring the magistrate's military service. The granting of a leave of absence under this subsection shall not operate to extend the term of office of any magistrate. (2) A magistrate granted a leave of absence under this subsection who — (A) receives a certificate of service under section 9(a) of the Military Selective Service Act of 1967 (50 U.S.C. App. 459(a)), or is re- leased under honorable conditions from the military service, (B) makes application for reinstatement to regular service in office as a magistrate within ninety days after he is released from such service or training or from hospitalization continuing after discharge for a period of not more than one year, and (C) is determined by the appointing court or courts in the manner specified m subsection (a) of this section to be still qualified to perform the duties of such position, shall be reinstated in regular service in such office, (k) Upon the grant by the appropriate district court or courts of a leave of absence to a magistrate entitled to such relief under the terms of subsection (i) of this section, such court or courts may proceed to appoint, in the manner specified in subsection (a) of this section, another magistrate, qualified for appointment and service under subsection (b), (c), and (d) of this section, who shall serve for the period specified in subsection (e) of this section. $632. Character of service (a) Full-time United States magistrates may not engage in the practice of law, and may not engage in any other business, occupation, or employment incon- sistent with the expeditious, proper, and impartial performance of their duties as judicial officers. (b) Part-time United States magistrates shall render such service as judicial officers as is required by law. While so serving they may engage in the practice of law, but may not serve as counsel in any criminal action in any court of the United States, nor act in any capacity that is, under such regulations as the conference may establish, inconsistent with the proper discharge of their office. Within such restrictions, they may engage in any other business, occupation, or employment which is not inconsistent with the expeditious, proper, and impartial performance of their duties as judicial officers. $636. Jurisdiction, powers, and temporary assignment (a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment — ( 1 ) all powers and duties conferred or imposed upon United States com- 255 Section 636 Selected Provisions from Title 28 missioners by law or by the Rules of Criminal Procedure for the United States District Courts; (2) the power to administer oaths and affirmations, issue orders pursuant to section 3146 of title 18 concerning release or detention of persons pending trial, and take acknowledgements, affidavits, and depositions; and (3) the power to conduct trials under section 3401, title 18, United States Code, in conformity- with and subject to the limitations of that section. (b) (1) Notwithstanding any provision of law to the contrary — (A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for in- junctive relief, for judgment on the pleadings, for summary judg- ment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to in\oluntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law. (B) a judge may also designate a magistrate to conduct hearings, in- cluding evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals con- victed of criminal offenses and of prisoner petitions challenging conditions of confinement. (C) the magistrate shall file his proposed findings and recommenda- tions under subparagraph (B) with the court and a copy shall forth- with be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (2) A judge may designate a magistrate to serve as a special master pursu- ant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. 256 Selected Provisions from Title 28 Section 636 (3) A magistrate may be assigned such additional duties as are not incon- sistent with the Constitution and laws of the United States. (4) Each district court shall establish rules pursuant to which the magis- trates shall discharge their duties. (c) Notwithstanding any provision of lav\' to the contrary — (1) Upon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judi- cial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when spe- cially designated to exercise such jurisdiction by the district court or courts he serves. Upon the consent of the parties, pursuant to their specific written request, any other part-time magistrate may exercise such jurisdiction, if such magistrate meets the bar membership re- quirements set forth in section 631(b)(1) and the chief judge of the district court certifies that a full-time magistrate is not reasonabK avail- able in accordance with guidelines established by the judicial council of the circuit. When there is more than one judge of a district court, designation under this paragraph shall be by the concurrence of a majority of all the judges of such district court, and when there is no such concurrence, then by the chief judge. (2) If a magistrate is designated to exercise civil jurisdiction under para- graph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of their right to consent to the exercise of such jurisdiction. The decision of the parties shall be communi- cated to the clerk of court. Thereafter, neither the district judge nor the magistrate shall attempt to persuade or induce any parh to consent to reference of any civil matter to a magistrate. Rules of court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent. (3) Upon entry of judgment in any case referred under paragraph (1) of this subsection, an aggrieved party may appeal directly to the appropri- ate United States court of appeals from the judgment of the magistrate in the same manner as an appeal from any other judgment of a district court. In this circumstance, the consent of the parties allows a magis- trate designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph shall be construed as a limitation of an\ party's right to seek review by the Supreme Court of the United States. (4) Notwithstanding the provisions of paragraph (3) of this subsection, at the time of reference to a magistrate, the parties may further consent to appeal on the record to a judge of the district court in the same manner as on an appeal from a judgment of the district court to a court of appeals. Wherever possible the local rules of the district court and the rules promulgated by the conference shall endeavor to make 257 Section 636 Selected Provisions from Title 28 such appeal inexpensive. The district court nia\ affirm, reverse, mod- ify, or remand the magistrate's judgment. (5) Cases in the district courts under paragraph (4) of this subsection ma\ be reviewed by the appropriate United States court of appeals upon petition for leave to appeal by a party stating specific objections to the judgment. Nothing in this paragraph shall be construed to be a limita- tion on any party's right to seek review by the Supreme Court of the United States. (6) The court may, for good cause shown on its ov\n motion, or under extraordinar\' circumstances shown by any part\', vacate a reference of a civil matter to a magistrate under this subsection. (7) The magistrate shall determine, taking into account the complexity of the particular matter referred to the magistrate, whether the record in the proceeding shall be taken, pursuant to section 753 of this title, by electronic sound recording means, by a court reporter appointed or employed by the court to take a verbatim record by shorthand or by mechanical means, or by an employee of the court designated by the court to take such a \erbatim record. Nohvithstanding the magistrate's determination, (A) the proceeding shall be taken down by a court re- porter if any party so requests, (B) the proceeding shall be recorded by a means other than a court reporter if all parties so agree, and (C) no record of the proceeding shall be made if all parties so agree. Reporters referred to in this paragraph may be transferred for temporar\' serv ice in any district court of the judicial circuit for reporting proceedings under this subsection, or for other reporting duties in such court. (d) The practice and procedure for the trial of cases before officers serving under this chapter, and for the taking and hearing of appeals to the district courts, shall conform to rules promulgated by the Supreme Court pursuant to section 3402 of tide 18, United States Code. (e) In a proceeding before a magistrate, any of the following acts or conduct shall constitute a contempt of the district court for the district wherein the magistrate is sitting: ( 1 ) disobedience or resistance to any lawful order, process, or writ; (2) misbehavior at a hearing or other proceeding, or so near the place thereof as to obstruct the same; (3) failure to produce, after having been ordered to do so, any pertinent document; (4) refusal to appear after ha\ ing been subpoe- naed or. upon appearing, refusal to take the oath or affirmation as a witness, or, having taken the oath or affirmation, refusal to be examined according to law; or (5) any other act or conduct which if committed before a judge of the district court would constitute contempt of such court. Upon the commission of any such act or conduct, the magistrate shall forthwith certifi.' the facts to a judge of the district court and may ser\e or cause to be served upon any person whose behavior is brought into question under this section an order requiring such person to appear before a judge of that court upon a day certain to show cause why he should not be adjudged in contempt by reason of the facts so certified. A judge of the district court shall thereupon, in a summarv' manner, hear the 258 Selected Provisions from Title 28 Section 1252 evidence as to the act or conduct complained of and. if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a judge of the court, or commit such person upon the conditions applicable in the case of defiance of the process of the district court or misconduct in the presence of a judge of that court. (f ) In an emergencv' and upon the concurrence of the chief judges of the districts involved, a United States magistrate may be temporarily assigned to p>erform any of the duties specified in subsecHon (a) or (b) of this section in a judicial district other than the judicial district for which he has been appointed. No magistrate shall perform an\ of such duties in a district to which he has been temporariK assigned until an order has been issued by the chief judge of such district specifv ing ( 1 ) the emergency by reason of which he has been transferred, (2) the duration of his assignment, and (3) the duties which he is authorized to perform. .\ magistrate so assigned shall not be entitled to addi- tional compensation but shall be reimbursed for actual and necessarv' expenses incurred in the performance of his duties in accordance with section 635. (g) A United States magistrate may perform the verification function required by section 4107 of title IS, United States Code. A magistrate may be assigned by a judge of an\ United States district court to perform the verification required b\ section 4108 and the appointment of counsel authorized b\ section 4109 of title 18, United States Code, and may perform such functions beyond the territorial limits of the United States. A magistrate assigned such functions shall have no authority to perform any other function within the territorv- of a foreign country. Part IV. Jurisdiction and Venue Chapter 81. Supreme Court S 1 2 5 1 . Original jurisdiction (a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. lb) The Supreme Court shall ha\e original but not exclusive jurisdiction of (1) All actions or proceedings to which ambassadors, other public minis- ters, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens. SI 252. Direct appeals from decisions invalidating Acts of Congress .•\n\ parh may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of an\ court of the llnited States, the United States 259 Section 1252 Selected Provisions from Title 28 District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any other court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party. A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court. ^1253. Direct appeals from decisions of three-judge courts Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an inter- locutory or permanent injunction in any civil action, suit or proceeding re- quired by any Act of Congress to be heard and determined by a district court of three judges. SI 254. Courts of appeals; certiorari; appeal; certified questions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree; (2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by wTit of certiorari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented; (3) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy. SI 257. State courts; appeal; certiorari Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. (3) By writ of certiorari, where the validity of a treaty or statute of the Ihiited 260 Selected Pro\isions from Title 28 Section 1292 States is drawn in question or where the \alidit> of a State statute is drawn in question on the ground of its being repugnant to the Constitu- tion, treaties or laws of the United States, or where any tide, right, privilege or immunit\- is specially set up or claimed under the Constitu- tion, treaties or statutes of, or commission held or authority exercised under, the United States. For the purposes of this section, the term "highest court of a State" includes the District of Columbia Court of Appeals, S1258. Supreme Court of Puerto Rico; appeal; certiorari Final judgments or decrees rendered by the Supreme Court of the Common- wealth of Puerto Rico may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its xaliditv'. (2) By appeal, where is drawn in question the xalidity of a statute of the Commonwealth of Puerto Rico on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its \alidity. (3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the \aiidity of a statute of the Commonwealth of Puerto Rico is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, pri\ilege, or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States. Chapter 83. Court of Appeals ^1291. Final decisions of district courts The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall ha\e jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title. S1292. Interlocutory decisions (a) Except as pro\ided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the 261 Section 1292 Selected Provisions from Title 28 United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts on the judges thereof de- termining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially ad- vance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however. That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction — (1) of an appeal from an interlocutory order or decree described in subsec- tion (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title; and (2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting. (d)(1) When the chief judge of the Court of International Trade issues an order under the provisions of section 256(b) of this title or when any judge of the Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (2) When any judge of the United States Claims Court, in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litiga- tion, the United States Court of Appeals for the Federal Circuit may, in 262 Selected Provisions from Title 28 Section 1295 its discretion, permit an appeal to be taken from such order, if applica- tion is made to that Court within ten days after the entry of such order. (3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Claims Court, as the case may be, unless a stay is ordered by a judge of the Court of International Trade or of the Claims Court or by the United States Court of Appeals for the Federal Circuit or a judge of that court. 51 294. Circuits in which decisions reviewable Except as provided in sections 1292(c), 1292(d), and 1295 of this title, appeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows: (1) From a district court of the United States to the court of appeals for the circuit embracing the district; (2) From the United States District Court for the District of the Canal Zone, to the Court of Appeals for the Fifth Circuit; (3) From the District Court of the Virgin Islands, to the Court of Appeals for the Third Circuit; (4) From the District Court of Guam, to the Court of Appeals for the Ninth Circuit. 51295. Jurisdiction of the United States Court of Appeals for the Federal Circuit (a) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction — (1) of an appeal from a final decision of a district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, if the jurisdiction of that court was based, in whole or in part, on section 1338 of this title, except that a case involving a claim arising under any Act of Congress relating to copyrights or trademarks and no other claims under section 1338(a) shall be governed by sections 1291, 1292, and 1294 of this title; (2) of an appeal from a final decision of a district court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, if the jurisdiction of that court was based, in whole or in part, on section 1346 of this title, except that jurisdiction of an appeal in a case brought in a district court under section 1346(a)(1), 1346(b), 1346(e), or 1346(f) of this title or under section 1346(a)(2) when the claim is founded upon an Act of Congress or a regulation of an executive 263 Section 1295 Selected Provisions from Title 28 department providing for internal re\'enue shall be governed by sec- tions 1291, 1292, and 1294 of this title; (3) of an appeal from a final decision of the United States Claims Court; (4) of an appeal from a decision of — (A) the Board of Patent Appeals and Interferences of the Patent and Trademark Office with respect to patent applications and interfer- ences, at the instance of an applicant for a patent or any party to a patent interference, and any such appeal shall waive the right of such applicant or party to proceed under section 145 or 146 of title 35; (B) the Commissioner of Patents and Trademarks or the Trademark Trial and Appeal Board with respect to applications for registration of marks and other proceedings as provided in section 21 of the Trademark Act of 1946 (15 U.S.C. 1071); or (C) a district court to which a case was directed pursuant to section 145 or 146 of title 35; (5) of an appeal from a final decision of the United States Court of International Trade; (6) to review the final determinations of the United States International Trade Commission relating to unfair practices in import trade, made under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337); (7) to review, by appeal on questions of law only, findings of the Secre- tary of Commerce under headnote 6 to schedule 8, part 4, of the Tariff Schedules of the United States (relating to importation of instruments or apparatus); (8) of an appeal under section 71 of the Plant VarieK' Protection Act (7 U.S.C. 2461); (9) of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5; and (10) of an appeal from a final decision of an agency board of contract appeals pursuant to section 8(g)(1) of the Contract Disputes Act of 1978(41 U.S.C. 607(g)(1)). (b) The head of any executive department or agency may, with the approval of the Attorney General, refer to the Court of Appeals for the Federal Circuit for judicial review any final decision rendered by a board of contract appeals pursuant to the terms of any contract with the United States awarded by that department or agency which the head of such department or agency has con- cluded is not entitled to finality pursuant to the review standards specified in section 10(b) of the Contract Disputes Act of 1978 (41 U.S.C. 609(b)). The head of each executive department or agency shall make any referral under this section within one hundred and twenty days after the receipt of a copy of the final appeal decision. (c) The Court of Appeals for the Federal Circuit shall review the matter referred in accordance with the standards specified in section 10(b) of the 264 Selected Provisions from Title 28 Section 1332 Contract Disputes Act of 1978. The court shall proceed uith judicial review on the adniinistrati\e record made before the board of contract appeals on matters so referred as in other cases pending in such court, shall determine the issue of finalit}' of the appeal decision, and shall, if appropriate, render judgment thereon, or remand the matter to any administrative or executive body or official with such direction as it may deem proper and just. SI 296. Precedence of cases in the United States Court of Appeals FOR THE Federal Circuit Civil actions in the United States Court of .Appeals for the Federal Circuit shall be given precedence, in accordance with the law applicable to such actions, in such order as the court may by rule establish. Chapter 85. District Courts; Jurisdiction $1331. Federal question; amount in controversy; costs The district courts shall have original jurisdiction of all civil actions arismg under the Constitution, laws, or treaties of the United States. $1332. Diversity' of citizenship; amount in controversy; costs (a) The district courts shall ha\e original jurisdiction of all civil actions where the matter in contro\ersy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between — ( 1 ) citizens of different States; (2) citizens of a State, and citizens and subjects of a foreign state; (3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties; (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. (b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. (c) For the purposes of this section and section 1441 of this title, a corpora- tion shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business; Provided further. That in any direct action against the insurer of a policy or contract of liabilih- insurance, whether incorporated or unincorporated, to which action the in- 265 Section 1332 Selected Provisions from Title 28 sured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business. (d) The word "States," as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico. ;il?3v Admiralty, maritime and prize cases The district courts shall ha\c original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. As amended May 24, 1949, 63 Stat. 101. ^334. Bankruptcy cases and proceedings (a) Except as provided in subsection (b) of this section, the district court shall have original and exclusive jurisdiction of all cases under title 11. (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. (c)(1) Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 1 1 or arising in or related to a case under title 1 1. (2) Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 1 1 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdic- tion. Any decision to abstain made under this subsection is not re\'iew- able by appeal or otherwise. This subsection shall not be construed to limit the applicability of the stay provided for by section 362 of title 11, United States Code, as such section applies to an action affecting the property of the estate in bankruptcy. (d) The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever lo- cated, of the debtor as of the commencement of such case, and of the estate. 266 Selected Provisions from Title 28 Section 1337 SI 33 5. Interpleader (a) The district courts shall have original jurisdiction of any ci\il action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if (1) Two or more adverse claim- ants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registr\- of the court, there to abide the judgment of the court, or has gi\en bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy. (b) Such an action may be entertained although the titles or claims of the conflicting claimants do not ha\e a common origin, or are not identical, but are adverse to and independent of one another. [See also SSI 397 and 2361.] SI 337. Commerce and antitrust regulations; amount in contro- versy, COSTS (a) The district courts shall ha\c original jurisdiction of any ci\il action or proceeding arising under any Act of Congress regulating commerce or protect- ing trade and commerce against restraints and monopolies: Provided, however. That the district courts shall have original jurisdiction of an action brought under section 1 1707 of title 49 onl\' if the matter in controversy for each receipt or bill of lading exceeds $10,000, exclusive of interest and costs. (b) Except when express provision therefor is otherwise made in a statute of the United States, where a plaintiff who files the case under section 11707 of tirie 49 originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of any interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff. (c) The district courts shall not have jurisdiction under this section of any matter within the exclusive jurisdiction of the Court of International Trade under chapter 95 of this title. 267 Section 1338 Selected Provisions from Title 28 SI 338. Patents, plant variety protection, copyrights, trade-marks AND UNFAIR COMPETITION (a) The district courts shall have original jurisdiction of an\' civil action arising under any Act of Congress relating to patents, plant variet\- protection, copyrights and trade-marks. Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases. (b) The district courts shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection, or trade mark laws. S 1 3 3 9 . Postal matters The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal scr\ice. 51 340. Internal revenue; customs duties The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade. 5 1 34 1 . Taxes by States The district courts shall not enjoin, suspend or restrain the assessment, le\y or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 51 342. Rate orders OF State agencies The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utilit>' and made by a State administrative agency or a rate-making body of a State political subdivision, where: (1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of such State. 51 343. Civil rights and elective franchise (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: 268 Selected Provisions from Title 28 Section 1346 (1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42; (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent; (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress pro\iding for the protection of civil rights, including the right to vote. (b) For purposes of this section — (1) The District of Columbia shall be considered to be a State; and, (2) Any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. S 1 344. Election disputes The district courts shall have original jurisdiction of any civil action to recover possession of any office, except that of elector of President or Vice President, United States Senator, Representative in or delegate to Congress, or member of a state legislature, authorized by law to be commenced, wherein it appears that the sole question touching the title to office arises out of denial of the right to vote, to any citizen offering to vote, on account of race, color or previous condition of servitude. The jurisdiction under this section shall extend only so far as to determine the rights of the parties to office by reason of the denial of the right, guaranteed by the Constitution of the United States and secured by any law, to enforce the right of citizens of the United States to vote in all the States. jil545. United States as plaintiff Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commended by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. S 1 346. United States as defendant (a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of: (1) Any civil action against the United States for the recovery of any 269 Section 1546 Selected Provisions from Title 28 internal-revenue tax alleged to ha\e been erroneously or illegally as- sessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceed- ing $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliqui- dated damages in cases not sounding in tort which arc subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978. For the purpose of this paragraph, and express or implied contract with the Army and Air Force Exchange Service, Na\y Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Administration shall be con- sidered an express or implied contract with the United States. (b) Subject to the pro\isions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall ha\e exclusive jurisdic- tion of civil actions on claims against the llnited States, for money damages, accruing on and after Januar\' 1, 1945, for injur\' or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a pri\ate person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (c) The jurisdiction conferred by this section includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section. (d) The district courts shall not ha\e jurisdiction under this section of any civil action or claim for a pension. (e) The district courts shall have original jurisdiction of any civil action against the United States provided in sections 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1954. (f) The district courts shall have exclusive original jurisdiction of ci\il actions under section 2409a to quiet title to an estate or interest in real propert\ in which an interest is claimed by the United States. SnS9. PaRTIKS COLLUSIVKLV joined or M.'iiDE A district court shall not ha\e jurisdiction ot a ci\il action in which any 270 Selected Provisions from Title 28 Section 1391 party', by assignment or otherwise, has been improperly or collusively made or joined to in\oke the jurisdiction of such court. S 1361 . Action to compel an officer of the United States to perform HIS DVTl' The district courts shall have original jurisdiction ot any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. \1362. Indl^^n tribes The district courts shall have original jurisdiction of all ci\il actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in contro\ersy arises under the Constitution, lav\s, or treaties of the United States. S 1 364. Direct actions against insurers of members of diplomatic missions and their families (a) The district courts shall ha\e original and exclusi\e jurisdiction, without regard to the amount in controversy, of any civil action commenced by any person against an insurer who by contract has insured an indi\idual, who is a member of a mission (within the meaning of section 2(3) of the Diplomatic Relations Act (22 U.S.C. 254a(3))) or a member of the family of such a member of a mission, or an individual described in section 19 of the Conven- tion on Privileges and Immunities of the United Nations of February' 13, 1946, against liability for personal injury , death, or damage to propert\'. (b) Any direct action brought against an insurer under subsection (a) shall be tried without a jury, but shall not be subject to the defense that the insured is immune from suit, that the insured is an indispensable party, or in the absence of fraud or collusion, that the insured has violated a term of the contract unless the contract was cancelled before the claim arose. Chapter 87. District Courts; Venue \ 1 39 1 . N'enue generally (a) A civil achon wherein jurisdiction is founded only on diversity- of citizen- ship may, except as otherwise pro\ided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose. (b) A civil action wherein jurisdiction is not founded solely on di\ersity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as othenvise pro\ ided b\' la\s . Nca -tie... .-/-fU** cu>t i«i>e "ipeufiz rolcc.. 271 Section 1391 Selected Provisions from Title 28 (c) A corporation may be sued in any judicial district in which it is incorpo- rated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes. (d) An alien may be sued in any district. (e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the sum- mons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought. (f) A civil action against a foreign state as defined in section 1603(a) of this title may be brought — (1) in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; (2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title; (3) in any judicial district in which the agency or instrumentality is li- censed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or (4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof S 1 392. Defendants or property in different districts in same State (a) Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts. (b) Any civil action, of a local nature, involving property located in different districts in the same State, may be brought in any of such districts. |il393. Divisions; single defendant; defendants in different divisions (a) Except as otherwise provided, any civil action, not of a local nature, against a single defendant in a district containing more than one division must be brought in the division where he resides. 272 Selected Provisions from Title 28 Section 1402 (b) Any such action, against defendants residing in different divisions of the same district or different districts in the same State, may be brought in any of such divisions. S 1 396. Internal revenue t.axes Any civil action for the collection of internal revenue taxes may be brought in the district where the liability for such tax accrues, in the district of the taxpayer's residence, or in the district where the return was filed. SB97. Interpleader Any civil action of interpleader or in the nature of interpleader under section 1335 of this title may be brought in the judicial district in which one or more of the claimants reside. [See also SS1335 and 2361.] J1401. Stockholder's derivative action Any civil action by a stockholder on behalf of his corporation may be prose- cuted in any judicial district where the corporation might have sued the same defendants. J 1402. United States as defendant (a) Any civil action in a district court against the United States under subsec- tion (a) of section 1346 of this title may be prosecuted only: (1) Except as provided in paragraph (2), in the judicial district where the plaintiff resides; (2) In the case of a civil action by a corporation under paragraph (1) of subsection (a) of section 1346, in the judicial district in which is located the principal place of business or principal office or agency of the corporation; or if it has no principal place of business or principal office or agency in any judicial district (A) in the judicial district in which is located the office to which was made the return of the tax in respect of which the claim is made, or (B) if no return was made, in the judicial district in which lies the District of Columbia. Not- withstanding the foregoing provisions of this paragraph a district court, for the convenience of the parties and witnesses, in the interest of justice, may transfer any such action to any other district or division. (b) Any civil action on a tort claim against the United States under subsec- tion (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred. 273 Section 1402 Selected Provisions from Title 28 (c) Any civil action against the United States under subsection (e) of sec- tion 1346 of this title may be prosecuted only in the judicial district where the property is situated at the time of levy, or if no levy is made, in the judicial district in which the event occurred which gave rise to the cause of action. (d) Any civil action under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States shall be brought in the district court of the district where the property is located or, if located in different districts, in any of such districts. ;iil404. Change OF VENUE (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought; (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be trans- ferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer; (c) A district court may order any civil action to be tried at any place within the division in which it is pending; (d) As used in this section, "district court" includes the United States District Court for the District of the Canal Zone; and "district" includes the territorial jurisdiction of that court. 51406. Cure OR WAIVER OF DEFECTS (a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought. (b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue. (c) As used in this section, "district court" includes the United States District Court for the District of the Canal Zone; and "district" includes the territorial jurisdiction of that court. 51407. Multidistrict LITIGATION (a) When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to an\ district for 274 Selected Provisions from Title 28 Section 1407 coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter-claim, or third- party claim and remand any of such claims before the remainder of the action is remanded. (b) Such coordinated or consolidated pretrial proceedings shall be conducted by a judge or judges to whom such actions are assigned by the judicial panel on multidistrict litigation. For this purpose, upon request of the panel, a circuit judge or a district judge ma\' be designated and assigned temporarily for service m the transferee district by the Chief Justice of the United States or the chief judge of the circuit, as may be required, in accordance with the provisions of chapter 1 3 of this title. With the consent of the transferee district court, such actions may be assigned by the panel to a judge or judges of such district. The judge or judges to whom such actions are assigned, the members of the judicial panel on multidistrict litigation, and other circuit and district judges designated when needed by the panel may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings. (c) Proceedings for the transfer of an action under this section may be initiated by — (1) the judicial panel on multidistrict litigation upon its own initiative, or (2) motion filed with the panel by a party in an\ action in which transfer for coordinated or consolidated pretrial proceedings under this section may be appropriate. A copy of such motion shall be filed in the district court in which the moving parh's action is pending. The panel shall give notice to the parties in all actions in which transfers for coordinated or consolidated pretrial proceedings are contemplated, and such notice shall specify the time and place of any hearing to determine whether such transfer shall be made. Orders of the panel to set a hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed in the office of the clerk of the district court in which a transfer hearing is to be or has been held. The panel's order of transfer shall be based upon a record of such hearing at which material evidence may be offered by any party to an action pending in any district that would be affected by the proceedings under this section, and shall be supported by findings of fact and conclusions of law based upon such record. Orders of transfer and such other orders as the panel may make thereafter shall be filed in the office of the clerk of the district court of the transferee district and shall be effective when thus filed. The clerk of the transferee district court shall forthwith transmit a certi- fied copy of the panel's order to transfer to the clerk of the district court from 275 Section 1407 Selected Provisions froin Title 28 which the action is being transferred. An order denying transfer shall be filed in each district wherein there is a case pending in which the motion for transfer has been made. (d) The judicial panel on multidistrict litigation shall consist of seven circuit and district judges designated from time to time by the Chief Justice of the United States, no two of whom shall be from the same circuit. The concur- rence of four members shall be necessary to any action by the panel. (e) No proceedings for review of any order of the panel may be permitted except by extraordinary writ pursuant to the provisions of title 28, section 1651, United States Code. Petitions for an extraordinary writ to review an order of the panel to set a transfer hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed only in the court of appeals having jurisdiction over the district in which a hearing is to be or has been held. Petitions for an extraordinary writ to review an order to transfer or orders subsequent to transfer shall be filed only in the court of appeals having jurisdiction over the transferee district. There shall be no appeal or review or an order of the panel denying a motion to transfer for consolidated or coordinated proceedings. (f ) The panel may prescribe rules for the conduct of its business not inconsis- tent with Acts of Congress and the Federal Rules of Civil Procedure. (g) Nothing in this section shall apply to any action in which the United States is a complainant arising under the antitrust laws. "Anti-trust laws" as used herein include those acts referred to in the Act of October 15, 1914, as amended (38 Stat. 730; 15 U.S.C. 12), and also include the Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a, and 13b) and the Act of September 26, 1914, as added March 21, 1938 (52 Stat. 116, 117; 15 U.S.C. 56); but shall not include section 4A of the Act of October 15, 1914, as added July 7, 1955 (69 Stat. 282; 15 U.S.C. 15a). (h) Notwithstanding the provisions of section 1404 or subsection (f) of this section, the judicial panel multidistrict litigation ma>' consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under section 4C of the Clayton Act. Chapter 89. District Courts; Removal of Cases from State Courts ^1441. Actions removable generally (a) Except as otherwise expressly provided by Act of Congress, any civil- action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and di\ ision embracing the place where such action is pending. 276 Selected Provisions from Title 28 Section 1442 (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none _of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. (c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction. (d) Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown. S1442. Federal officers sued or prosecuted (a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. (2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States. (3) Any officer of the courts of the United States, for any Act under color of office or in the performance of his duties; (4) Any officer of either House of Congress, for any act in the discharge of his official duty under an order of such House. (b) A personal action commenced in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States and is a nonresident of such State, wherein jurisdic- tion is obtained by the State court by personal service of process, may be removed by the defendant to the district court of the United States for the district and division in which the defendant was served with process. 277 Section 1442a Selected Provisions from Title 28 S 1442a. Members of armed forces sued or prosecuted A civil or criminal prosecution in a court of a State of the United States against a member of the armed forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States for the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have full power to hear and determine the cause. ;il443. Civil rights cases Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. S 1 44 5 . Nonremovable actions (a) A civil action in any State court against a railroad or its receivers or trustees, arising under sections 51 to 60 of Title 45, may not be removed to any district court of the United States. (b) A civil action in any State court against a common carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments, arising under section 11707 of Title 49, may not be removed to any district court of the United States unless the matter in controversy exceeds $10,000, exclusive of interest and costs. (c) A civil action in any State court arising under the workmen's compensa- tion laws of such State may not be removed to any district court of the United States. )il446. Procedure for removal (a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a 278 Selected Pro\isions from Title 2& Section 1447 verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served up>on him or them in such achon. (b) The petihon for removal of a civil action or proceeding shall be filed within thirty- days after the receipt b\ the defendant, through sen, ice or other- wise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever jjeriod is shorter. If the case stated by the initial pleading is not removable, a petition for removal ma\' be filed vvithin thirty days after receipt b\- the defendant, through service or otherwise, of a copy of an amended pleadmg, motion, order or other pajjer from which it may first be ascertained that the case is one which is or has become removable. (d) Each f>etition for removal of a ci\nl action or proceeding, except a {petition in behalf of the United States, shall be accompanied by a bond with good and sufficient suret\ conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed. (e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the p>etition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. . . . J1447. Procedure .'VFTER REMOVAL GENERALLY (a) In any case removed ft^om a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise. (b) It may require the petitioner to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such State court. (c) If at any time before final judgment it appears that the case was removed improvidently and w ithout jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1445 of this title shall be reviewable bv' appeal or otherwise. 279 Section 1448 Selected Provisions from Title 28 jil448. Process AFTER REMOVAL In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court. This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case. S1451. Definitions For purposes of this chapter — (1) The term "State court" includes the Superior Court of the District of Columbia. (2) The term "State" includes the District of Columbia. S1452. Removal of claims related to bankruptcy cases (a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. (b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise. Chapter 99. General Provisions ji 163 1 . Transfer to cure want of jurisdiction Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 280 Selected Provisions from Title 28 Section 1695 Part V. Procedure Chapter 111. General Provisions S165I. Writ (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law . (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. ^1652. State LAWS AS RULES OF DECISION The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be re- garded as rules of decision in civil actions in the courts of the United States, in cases where they apply. S1654. Appearance personally or by counsel In all courts of the United States the parties may plead and conduct their own cases personally or by counsel, as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein. Chapter 113. Process SI 693. Place of arrest in civil action Except as otherwise provided by Act of Congress, no person shall be arrested in one district for trial in another in anv civil action in a district court. J11694. Patent infringement action In a patent infringement action commenced in a district where the defendant is not a resident but has a regular and established place of business, service of process, summons or subpoena upon such defendant may be made upon his agent or agents conducting such business. 51695. Stockholder's derivative action Process in a stockholder's action in behalf of his corporation may be served upon such corporation in any district where it is organized or licensed to do business or is doing business. 281 Section 1696 Selected Provisions from Title 28 SI 696. Service in foreign and international litigation (a) The district court of the district in which a person resides or is found may order service upon him of any document issued in connection with a proceed- ing in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon application of any interested person and shall direct the manner of ser- vice. Service pursuant to this subsection does not, of itself, require the recogni- tion or enforcement in the United States of a judgment, decree, or order rendered by a foreign or international tribunal. (b) This section does not preclude service of such a document without an order of court. Chapter 115. Evidence; Documentary S 1738. State and Territorial statutes and [udicial proceedings; full FAITH and credit The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. The records and judicial proceedings of any court of any such State, Terri- tory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certifi- cate of a judge of the court that the said attestation is in proper form. Such Acts, records and judicial proceedings or copies thereof, so authenti- cated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. S 1738A. Full faith and credit given to child custody determinations (a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify' except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State. (b) As used in this section, the term — (1) "child" means a person under the age of eighteen; (2) "contestant" means a person, including a parent, who claims a right to custody or visitation of a child; (3) "custody determination" means a judgment, decree, or other order of a court providing for the custody or \isitation of a child, and includes permanent and temporary orders, and initial orders and modifications; 282 Selected Provisions from Title 28 Section 1738A (4) "home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period; (5) "modification" and "modify" refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not; (6) "person acting as a parent" means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; (7) "physical custody" means actual possession and control of a child; and (8) "State" means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States. (c) A child custody determination made by a court of a State is consistent with the provisions of this section only if — (1) such court has jurisdiction under the law of such State; and (2) one of the following conditions is met: (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commence- ment of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State; (B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (1) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse; (D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdication on the ground that the State whose jurisdic- tion is in issue is the more appropriate forum to determine the 283 Section 1738A Selected Provisions from Title 28 custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or (E) the court has continuing jurisdiction pursuant to subsection (d) of this section. (d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant. (e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child. (f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if — (1) it has jurisdiction to make such a child custody determination; and (2) the court of the other State no longer has jurisdiction, or it has de- clined to exercise such jurisdiction to modify such determination. (g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination. S1739. State and Territorial nonjudicial records; full faith and CREDIT All nonjudicial records or books kept in any public office of any State, Territory, or Possession of the United States, or copies thereof, shall be proved or admitted in any court or office in any other State, Territory, or Possession by the attestation of the custodian of such records or books, and the seal of his office annexed, if there be a seal, together with a certificate of a judge of a court of record of the county, parish, or district in which such office may be kept, or of the Governor, or secretary of state, the chancellor or keeper of the great seal, of the State, Territory, or Possession that the said attestation is in due form and by the proper officers. If the certificate is given by a judge, it shall be further authenticated by the clerk or prothonotary of the court, who shall certify, under his hand and the seal of his office, that such judge is duly commissioned and qualified; or. if given by such Governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or Possession in which it is made. Such records or books, or copies thereof, so authenticated, shall have the same full faith and credit in every court and office within the United States and its Territories and Possessions as they have by law or usage in the courts or offices of the State, Territory, or Possession from which they are taken. 284 Selected Provisions from Title 28 Section 1821 Chapter 119. Evidence; Witnesses SI 821. Per diem and mileage generally; subsistence (a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section. (2) As used in this section, the term "court of the United States" includes, in addition to the courts listed in section 451 of this title, any court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States. (b) A witness shall be paid an attendance fee of $30 per day for each day's attendance. A witness shall also be paid the attendance fee for the time neces- sarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance. (c)(1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably uti- lized and the distance necessarily traveled to and from such witness's residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most eco- nomical rate reasonably available. A receipt or other evidence of actual cost shall be furnished. (2) A travel allowance equal to the mileage allowance which the Adminis- trator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Com- putation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of Gen- eral Services. (3) Toll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt), shall be paid in full to a witness incurring such expenses. (4) All normal travel expenses within and outside the judicial district shall be taxable as costs pursuant to section 1920 of this title. (d)(1) A subsistence allowance shall be paid to a witness (other than a witness who is incarcerated) when an overnight stay is required at the place of atten- dance because such place is so far removed from the residence of such witness as to prohibit return thereto from day to day. (2) a subsistence allowance for a witness shall be paid in an amount not to exceed the maximum per diem allowance prescribed by the Adminis- trator of General Services, pursuant to section 5702(a) of title 5, for 285 Section 1821 Selected Provisions from Title 28 official travel in the area of attendance by employees of the Federal Government. (3) A subsistence allowance for a witness attending in an area designated by the Administrator of General Services as a high-cost area shall be paid in an amount not to exceed the maximum actual subsistence allowance prescribed by the Administrator, pursuant to section 5702(c)(B) of title 5, for official travel in such area by employees of the Federal Government. (4) When a witness is detained pursuant to section 3 149 of title 18 for want of security for his appearance, he shall be entitled for each day of detention when not in attendance at court, in addition to his subsistence, to the daily attendance fee provided by subsection (b) of this section. (e) An alien who has been paroled into the United States for prosecution, pursuant to section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), or an alien who either has admitted belonging to a class of aliens who are deportable or has been determined pursuant to section 242(b) of such Act (8 U.S.C. 1252(b)) to be deportable, shall be ineligible to receive the fees or allowances provided by this section. 51 824. Mileage fees under summons as both witness and juror No constructive or double mileage fees shall be allowed by reason of any person being summoned both as a witness and a juror. 51 825. Payment of fees In any case wherein the United States or an officer or agency thereof, is a party, the United States marshal for the district shall pay all fees of witnesses on the certificate of the United States Attorney or Assistant United States Attorney, and in the proceedings before a United States Commissioner, on the certificate of such commissioner. In all proceedings, in forma pauperis, for a writ of habeas corpus or in proceedings under section 2255 of this title, the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauperis, on the certificate of the district judge. Fees and mileage need not be tendered to the witness upon service of a subpena issued in behalf of the United States or an officer or agency thereof, or upon service of a subpena issued on behalf of a party, authorized to proceed in forma pauperis, where the payment thereof is to be made by the United States marshal as authorized in this section. 5 1 826. Recalcitrant witnesses (a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with 286 Selected Provisions from Title 28 Section 1863 an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may sum- marily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of— (1) the court proceeding, or (2) the term of the grand jurv', including extensions, before which such refusal to comph with the court order occurred, but in no event shall such confinement exceed eighteen months. (b) No person confined pursuant to subsection (a) of this section shall be admitted to bail pending the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this sechon shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal. Chapter 121. Juries; Trial by Jury SI 861. Declaration OF POLICY It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose. \1862. Discrimination prohibited No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States or in the Court of International Trade on account of race, color, religion, sex, national origin, or economic status. S186?. Plan for random jury selection (a) Each United States district court shall devise and place into operation a written plan for random selection of grand and petit jurors that shall be de- signed to achieve the objectives of sections 1861 and 1862 of this title, and that shall otherwise comply with the provisions of this title. The plan shall be placed into operation after approval by a reviewing panel consisting of the members of the judicial council of the circuit and either the chief judge of the district whose plan is being reviewed or such other active district judge of that 287 Section 1863 Selected Provisions from Title 28 district as the chief judge of the district may designate. The panel shall examine the plan to ascertain that it complies with the provisions of this title. If the reviewing panel finds that the plan does not comply, the panel shall state the particulars in which the plan fails to comply and direct the district court to present within a reasonable time an alternative plan remedying the defect or defects. Separate plans may be adopted for each division or combination of divisions within a judicial district. The district court may modify a plan at any time and it shall modify the plan when so directed by the reviewing panel. The district court shall promptly notify the panel, the Administrative Office of the United States Courts, and the Attorney General of the United States, of the initial adoption and future modifications of the plan by filing copies therewith. Modifications of the plan made at the instance of the district court shall become effective after approval by the panel. Each district court shall submit a report on the jury selection process within its jurisdiction to the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specif)'. The Judicial Conference of the United States may, from time to time, adopt rules and regulations governing the provisions and the operation of the plans formulated under this title. (b) Among other things, such plan shall — (1) either establish a jury commission, or authorize the clerk of the court, to manage the jury selection process. If the plan establishes a jury commission, the district court shall appoint one citizen to ser\e with the clerk of the court as the jury commission: Provided, however. That the plan for the District of Columbia may establish a jury commission consisting of three citizens. The citizen jury commissioner shall not belong to the same political party as the clerk serving v\ith him. The clerk or the jury commission, as the case may be, shall act under the supervision and control of the chief judge of the district court or such other judge of the district court as the plan may provide. Each jury commissioner shall, during his tenure in office, reside in the judicial district or division for which he is appointed. Each citizen jury com- missioner shall receive compensation to be fixed by the district court plan at a rate not to exceed $50 per day for each day necessarily employed in the performance of his duties, plus reimbursement for travel, subsistence, and other necessary expenses incurred by him in the performance of such duties. The Judicial Conference of the L'nited States may establish standards for allowance of tra\el, subsis- tence, and other necessary expenses incurred by jury commissioners. (2) specify whether the names of prospective jurors shall be selected from the voter registration lists or the lists of actual voters of the political subdi\isions within the district or division. The plan shall prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title. The plan for the District of Columbia may 288 Selected Provisions from Title 28 Section 1863 require the names of prospective jurors to be selected from the cits' directory rather than from voter lists. The plans for the districts of Puerto Rico and the Canal Zone may prescribe some other source or sources of names of prospective jurors in lieu of voter lists, the use of which shall be consistent with the policies declared and rights secured by sections 1861 and 1862 of this title. (3) Specifs' detailed procedures to be followed by the jury commission or clerk in selecting names from the sources specified in paragraph (2) of this subsection. These procedures shall be designed to ensure the random selection of a fair cross section of the persons residing in the community in the district or division wherein the court convenes. They shall ensure that names of persons residing in each of the counties, parishes, or similar political subdivisions within the judicial district or division are placed in a master jury wheel; and shall ensure that each county, parish, or similar political subdivision within the district or division is substantially proportionally represented in the master jury wheel for that judicial district, division, or combination of divisions. For the purposes of determining proportional representation in the master jury wheel, either the number of actual voters at the last general election in each counh', partv', or similar political subdivision, or the number of registered voters if registration of voters is uniformly required throughout the district or division, may be used. (4) provide for a master jury wheel (or a device similar in purpose and function) into which the names of those randomly selected shall be placed. The plan shall fix a minimum number of names to be placed initially in the master jury wheel, which shall be at least one-half of 1 per centum of the total number of persons on the lists used as a source of names for the district or division; but if this number of names is believed to be cumbersome and unnecessarv', the plan may fix a smaller number of names to be placed in the master wheel, but in no event less than one thousand. The chief judge of the district court, or such other district court judge as the plan may provide, may order additional names to be placed in the master jury wheel from time to time as necessary. The plan shall provide for periodic emptying and refilling of the master jury wheel at specified times, the interval for which shall not exceed four years. (5) specify those groups of persons or occupational classes whose members shall, on individual request therefor, be excused from jury service. Such groups or classes shall be excused only if the district court finds, and the plan states, that jury service by such class or group would entail undue hardship or extreme inconvenience to the members thereof, and excuse of members thereof would not be inconsistent with sections 1861 and 1862 of this title. (6) specify those groups of persons or occupational classes whose members shall be barred from jury service on the ground that they are exempt. 289 Section 1863 Selected Provisions from Title 28 Such groups or classes shall be exempt only if the district court finds, and the plan states, that their exemption is in the public interest and would not be inconsistent with sections 1861 and 1862 of this title. The plan shall provide for exemption of the following persons: (i) members in active service in the Armed Forces of the United States; (ii) members of the fire or police departments of an\ State, district, territory, possession, or subdivision thereof; (iii) public officers in the executive, legislati\e, or judicial branches of the Government of the United States, or any State, district, terri- tory, or possession or subdivision thereof, who are actively engaged in the performance of official duties. (7) fix the time when the names drawn from the qualified jury wheel shall be disclosed to parties and to the public. If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court, or such other district court judge as the plan may provide, to keep these names confidential in any case where the inter- ests of justice so require. (8) specify the procedures to be followed by the clerk or jury commission in assigning persons whose names have been drawn from the qualified jury wheel to grand and petit jury panels. (c) The initial plan shall be devised by each district court and transmitted to the reviewing panel specified in subsection (a) of this section within one hun- dred and twenty days of the date of enactment of the Jur\' Selection and Service Act of 1968. The panel shall approve or direct the modification of each plan so submitted within sixty days thereafter. Each plan or modification made at the direction of the panel shall become effective after approval at such time there- after as the panel directs, in no event to exceed ninety days from the date of approval. Modifications made at the instance of the district court under subsec- tion (a) of this section shall be effective at such time thereafter as the panel directs, in no event to exceed ninety days from the date of modification. (d) State, local, and Federal officials having custody, possession, or control of voter registration lists, lists of actual \oters, or other appropriate records shall make such lists and records available to the jury commission or clerks for inspection, reproduction, and copying at all reasonable times as the commis- sion or clerk may deem necessary and proper for the performance of duties under this title. The district courts shall have jurisdiction upon application by the Attorney General of the United States to compel compliance with this subsection by appropriate process. SI 864. Drawing ok names from the master jury wheel; completion of JUROR qualification FORM (a) From time to time as directed by the district court, the clerk or a district judge shall publicly draw at random from the master jury wheel the names of 290 Selected Provisions from Title 28 Section 1865 as many persons as may be required for jury service. The clerk or jury commis- sion shall prepare an alphabetical list of the names drawn, which list shall not be disclosed to any person except pursuant to the district court plan and to sections 1867 and 1868 of this title. The clerk or jury commission shall mail to every person whose name is drawn from the master wheel a juror qualification form accompanied by instructions to fill out and return the form, duly signed and sworn, to the clerk or jury commission by mail within ten days. If the person is unable to fill out the form, another shall do it for him, and shall indicate that he has done so and the reason therefor. In any case in which it appears that there is an omission, ambiguity, or error in a form, the clerk or jury commission shall return the form with instructions to the person to make such additions or corrections as may be necessary and to return the form to the clerk or jury commission within ten days. Any person who fails to return a completed juror qualification form as instructed may be summoned by the clerk or jury commission forthwith to appear before the clerk or jury commis- sion to fill out a juror qualification form. A person summoned to appear because of failure to return a juror qualification form as instructed who person- ally appears and executes a juror qualification form before the clerk or jury commission may, at the discretion of the district court, except where his prior failure to execute and mail such form was willful, be entitled to receive for such appearance the same fees and travel allowances paid to jurors under section 1871 of this title. At the time of his appearance for jur\' service, any person may be required to fill out another juror qualification form in the presence of the jury commission or the clerk or the court, at which time, in such cases as it appears warranted, the person may be questioned, but only with regard to his responses to questions contained on the form. Any information thus acquired by the clerk or jury commission may be noted on the juror qualification form and transmitted to the chief judge or such district court )udge as the plan may provide. (b) Any person summoned pursuant to subsection (a) of this section who fails to appear as directed shall be ordered by the district court forthwith to appear and show cause for his failure to comply with the summons. Any person who fails to appear pursuant to such order or who fails to show good cause for noncompliance with the summons may be fined not more than $100 or impris- oned not more than three days, or both. Any person who willfully misrepre- sents a material fact on a juror qualification form for the purpose of avoiding or securing service as a juror may be fined not more than $100 or imprisoned not more than three days, or both. Si 86 5. Qualifications for jury service (a) The chief judge of the district court, or such other district court judge as the plan may provide, on his initiative or upon recommendation of the clerk or jury commission, shall determine solely on the basis of information provided on the juror qualification form and other competent evidence whether a person is 291 Section 1865 Selected Provisions from Title 28 unqualified for, or exempt, or to be excused from jurx' service. The clerk shall enter such determination in the space provided on the juror qualification form and the alphabetical list of names drawn from the master )ur\' wheel. If a person did not appear in response to a summons, such fact shall be noted on said list. (b) In making such determination the chief judge of the district court, or such other district court judge as the plan may provide, shall deem any person qualified to ser\e on grand and petit juries in the district court unless he — (1) is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district; (2) is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualifi- cation form; (3) is unable to speak the English language; (4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or (5) has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored. )il866. Selection and summoning of jury panels (a) The jury commission, or in the absence thereof the clerk, shall maintain a qualified jury wheel and shall place in such wheel names of ail persons drawn from the master jury wheel who are determined to be qualified as jurors and not exempt or excused pursuant to the district court plan. From time to time, the jury commission or the clerk shall publicly draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand and petit jury panels. The jury commission or the clerk shall prepare a separate list of names of persons assigned to each grand and petit jury panel. (b) When the court orders a grand or petit jury to be drawn, the clerk or jury commission or their duly designated deputies shall issue summonses for the required number of jurors. Each person drawn for jury service may be served personally, or by regis- tered, certified or first-class mail addressed to such person at his usual residence or business address. If such service is made personally, the summons shall be delivered by the clerk or the jury commission or their duly designated deputies to the marshal who shall make such ser\'ice. If such service is made by mail, the summons may be served by the marshal or by the clerk or jury commission or their duly designated deputies, who shall make affidavit of service and shall attach thereto any receipt from the addressee for a registered or certified summons. (c) Except as provided in section 1865 of this title or in any jur\' selection 292 Selected Provisions from Title 28 Section 1866 plan provision adopted pursuant to paragraph (5) or (6) of section 1863(b) of this title, no person or class of persons shall be disqualified, excluded, ex- cused, or exempt from service as jurors: Provided, That any person sum- moned for jury service may be (1) excused by the court, upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person shall be summoned again for jury service under subsections (b) and (c) of this section, or (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings, or (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law^ upon a challenge by any party for good cause shown, or (5) excluded upon determi- nation by the court that his service as a juror would be likely to threaten the secrecy of the proceedmgs, or otherwise adversely affect the integrity of jury deliberations. No person shall be excluded under clause (5) of this subsection unless the judge, in open court, determines that such is warranted and that exclusion of the person will not be inconsistent with sections 1861 and 1862 of this title. The number of persons excluded under clause (5) of this subsec- tion shall not exceed one per centum of the number of persons who return executed jury qualification forms during the period, specified in the plan, between two consecutive fillings of the master jury wheel. The names of persons excluded under clause (5) of this subsection, together with detailed explanations for the exclusions, shall be forwarded immediately to the judicial council of the circuit, which shall have the power to make any appropriate order, prospective or retroactive, to redress any misapplication of clause (5) of this subsection, but otherwise exclusions effectuated under such clause shall not be subject to challenge under the provisions of this title. Any person excluded from a particular jury under clause (2), (3), or (4) of this subsection shall be eligible to sit on another jury if the basis for his initial exclusion would not be relevant to his abilits' to serve on such other jury. (d) Whenever a person is disqualified, excused, exempt, or excluded from jury service, the jury commission or clerk shall note in the space provided on his juror qualification form or on the juror's card drawn from the qualified jury wheel the specific reason therefor. (e) In any two-year period, no person shall be required to (1) serve or attend court for prospective service as a petit juror for a total of more than thirty days, except when necessary to complete service in a particular case, or (2) serve on more than one grand jury, or (3) serve as both a grand and petit juror. (f ) When there is an unanticipated shortage of available petit jurors drawn from the qualified jury wheel, the court may require the marshal to summon a sufficient number of petit jurors selected at random from the voter registration lists, lists of actual voters, or other lists specified in the plan, in a manner ordered by the court consistent with sections 1861 and 1862 of this title. (g) Any person summoned for jury service who fails to appear as directed shall be ordered by the district court to appear forthwith and show cause for his 293 Section 1866 Selected Provisions from Title 28 failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $100 or imprisoned not more than three days, or both. SI 867. Challenging compliance with selection procedures (a) hi criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (b) hi criminal cases, before the voir dire examination begins, or within seven days after the Attorney General of the United States discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the Attorney General may move to dismiss the indictment or stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (c) In civil cases, before the voir dire examination begins, or within seven days after the party discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the petit jury. (d) Upon motion filed under subsection (a), (b), or (c) of this section, con- taining a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commis- sion or clerk, if available, any relevant records and papers not public or other- wise available used by the jury commissioner or clerk, and any other relevant evidence. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the grand jury, the court shall stay the proceedings pending the selection of a grand jury in conformity with this title or dismiss the indictment, whichever is appropriate. If the court determines that there has been a substantial failure to comply with the provi- sions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in comformity with this title. (e) The procedures prescribed by this section shall be the exclusi\e means by which a person accused of a Federal crime, the Attorney General of the United States or a party in a civil case may challenge any jury on the ground that such jury was not selected in conformit)' with the provisions of this title. Nothing in this section shall preclude any person or the United States from pursuing any other remedy, ci\il or criminal, which may be available for the vindication or enforcement of any law prohibiting discrimination on account of race, color, religion, sex, national origin or economic status in the selection of persons for service on grand or petit juries. 294 Selected Provisions from Title 28 Section 1869 (f ) The contents of records or papers used b\' the iur> commission or clerk in connection with the jury selection process shall not be disclosed, except pursu- ant to the district court plan or as may be necessary' in the preparation or presentation of a motion under subsection (a), (b), or (c) or this section, until after the master jury wheel has been emptied and refilled pursuant to section 1863(b)(4) of this title and all persons selected to serve as jurors before the master wheel was emptied have completed such service. The parties in a case shall be allowed to inspect, reproduce, and copy such records or papers at all reasonable hmes during the preparation and pendency of such a motion. Any person who discloses the contents of any record or paper in violation of this subsection may be fined not more than 51,000 or imprisoned not more than one year, or both. $1868. Maintenance and inspection of records After the master jury wheel is emptied and refilled pursuant to section 1 863(b)(4) of this title, and after all persons selected to serve as jurors before the master wheel was emptied have completed such service, all records and papers compiled and maintained b\ the jur\- commission or clerk before the master wheel was emptied shall be preserved in the custody of the clerk for four years or for such longer period as may be ordered by a court, and shall be a\ailable for public mspection for the purpose of determining the validity of the selection of any jur>'. SI 869. Definitions For purposes of this chapter — (a) "clerk" and "clerk of the court" shall mean the clerk of the district court of the United States or any authorized deput\' clerk; (b) "chief judge" shall mean the chief judge of any district court of the United States; (c) Voter Registration lists shall mean the official records maintained by State or local election officials of persons registered to vote in either the most recent State or the most recent Federal general election, or, in the case of a State or political subdi\ision thereof that does not require registration as a prerequisite to voting, other official lists of persons qualified to \'ote in such election. The term shall also include the list of eligible \oters maintained by any Federal examiner pursuant to the Voting Rights Act of 1965 where the names on such list have not been included on the official registration lists or other official lists maintained by the appropriate State or local officials. With respect to the districts of Guam and the Virgin Islands, "\oter registration lists" shall mean the official records maintained by territorial election officials of persons regis- tered to vote in the most recent territorial general election; (d) "lists of actual voters" shall mean the official lists of persons actually voting in either the most recent State or the most recent Federal general election; 295 Section 1869 Selected Provisions from Title 28 (e) "division" shall mean: ( 1 ) one or more statutor\' divisions of a judicial district; or (2) in statutory divisions that contain more than one place of holding court, or in judicial districts where there are no statutor\' divisions, such counties, parishes, or similar political subdivisions surrounding the places where court is held as the district court plan shall determine: Provided, That each county, parish, or similar political subdivision shall be included in some such division; (f) "district court of the United States," "district court," and "court" shall mean courts constituted under chapter 5 of title 28, United States Code, section 22 of the Organic Act of Guam, as amended (64 Stat. 389; 48 U.S.C. 1424), section 21 of the Revised Organic Act of the Virgin Islands (68 Stat. 506; 48 U.S.C. 1611), and section 1 of title 3, Canal Zone Code; except that for purposes of sections 1861, 1862, 1866(c), 1866(d), and 1867 of this chapter such terms shall include the Superior Court of the District of Columbia; (g) "jury wheel" shall include any device or system similar in purpose or function, such as a properly programed electronic data processing system or device; (h) "juror qualification form" shall mean a form prescribed by the Administra- tive Office of the United States Courts and approved by the Judicial Conference of the United States, which shall elicit the name, address, age, race, occupation, education, length of residence within the judicial district, distance from residence to place of holding court, prior jury service, and citizenship of a potential juror, and whether he should be excused or exempted from jury ser\ice, has any physicial or mental infirmity impairing his capacity to serve as juror, is able to read, write, speak, and understand the English language, has pending against him any charge for the commission of a State or Federal criminal offense punishable by imprisonment for more than one year, or has been convicted in any State or Federal court of record of a crime punishable by imprisonment for more than one year and has not had his civil rights restored. The form shall request, but not require, any other information not inconsistent with the provisions ofthis title and required by the district court plan in the interests of the sound administration of justice. The form shall also elicit the sworn statement that his responses are true to the best of his knowledge. Notarization shall not be required. The form shall contain words clearly informing the person that the furnishing of any information with respect to his religion, national origin, or economic status is not a prerequisite to his qualification for jury service, that such information need not be furnished if the person finds it objectionable to do so, and that information concerning race is required solely to enforce nondiscrimination in jury selection and has no bearing on an individual's qualification for jury senice. (i) "public officer" shall mean a person who is either elected to public office or who is directly appointed by a person elected to public office. SI 870. Challenge In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for 296 Selected Provisions from Title 28 Section 1871 the purposes of making challenges, or the court may allow additional peremp- tory challenges and permit them to be exercised separately or jointly. All challenges for cause or favor, whether to the array or panel or to individ- ual jurors, shall be determined bv the court. S1871. Fees (a) Grand and petit jurors in district courts appearing pursuant to this chapter shall be paid the fees and allowances provided by this section. The requisite fees and allowances shall be disbursed on the certificate of the clerk of court in accordance with the procedure established by the Director of the Administra- tive Office of the United States Courts. Attendance fees for extended service under subsection (b) of this section shall be certified by the clerk only upon the order of a district judge. (b)(1) A juror shall be paid an attendance fee of $30 per day for actual attendance at the place of trial or hearing. A juror shall also be paid the attendance fee for the time necessarily occupied in going to and returning from such place at the beginning and end of such service or at any time during such service. (2) A petit juror required to attend more than thirty days in hearing one case may be paid, in the discretion of the trial judge, an additional fee, not exceeding $5 more than the attendance fee, for each day in excess of thirty days on which he is required to hear such case. (3) A grand juror required to attend more than forty-five days of actual service may be paid, in the discretion of the district judge in charge of the particular grand jury, an additional fee, not exceeding $5 more than the attendance fee, for each day in excess of forty-five days of actual service. (4) A grand or petit juror required to attend more than ten days of actual service may be paid, in the discretion of the judge, the appropriate fees at the end of the first ten days and at the end of every ten days of service thereafter. (5) Certification of additional attendance fees may be ordered by the judge to be made effective commencing on the first day of extended service, without reference to the date of such certification. (c)(1) A travel allowance not to exceed the maximum rate per mile that the Director of the Administrative Office of the United States Courts has prescribed pursuant to section 604(a)(7) of this title for payment to supporting court per- sonnel in travel status using privately ov\ned automobiles shall be paid to each juror, regardless of the mode of transportation actually employed. The pre- scribed rate shall be paid for the distance necessarily traveled to and from a juror's residence by the shortest practical route in going to and returning from the place of service. Actual mileage in full at the prescribed rate is payable at the beginning and at the end of a juror's term of service. (2) The Director shall promulgate rules regulating interim travel allow- 297 Section 1871 Selected Provisions from Title 28 ances to jurors. Distances tra\eled to and from court should coincide with the shortest practical route. (3) Toll charges for toll roads, bridges, tunnels, and ferries shall be paid in full to the juror incurring such charges. In the discretion of the court, reasonable parking fees may be paid to the juror incurring such fees upon presentation of a valid parking receipt. Parking fees shall not be included in any tabulation of mileage cost allowances. (4) Any juror who travels to district court pursuant to summons in an area outside of the contiguous forty-eight States of the United States shall be paid the travel expenses provided under this section, or actual reasonable transportation expenses subject to the discretion of the dis- trict judge or clerk of court as circumstances indicate, exercising due regard for the mode of transportation, the availability of alternative modes, and the shortest practical route between residence and court. (d)(1) A subsistence allowance covering meals and lodging of jurors shall be established from time to time by the Director of the Administrative Office of the United States Courts pursuant to section 604(a)(7) of this title, except that such allowance shall not exceed the allowance for supporting court personnel in travel status in the same geographical area. Claims for such allowance shall not require itemization. (2) A subsistence allowance shall be paid to a juror when an o\ernight stay is required at the place of holding court, and for the time neces- sarily spent in traveling to and from the place of attendance if an overnight stay is required. (3) A subsistence allowance for jurors serving in district courts outside of the contiguous forty-eight States of the United States shall be allowed at a rate not to exceed that per diem allowance which is paid to supporting court personnel in travel status in those areas where the Director of the Administrative Office of the United States Courts has prescribed an increased per diem fee pursuant to section 604(a)(7) of this title. (e) During any period in which a jury is ordered to be kept together and not to separate, the actual cost of subsistence shall be paid upon the order of the court in lieu of the subsistence allowances payable under subsection (d) of this section. Such allowance for the jurors ordered to be kept separate or se- questered shall include the cost of meals, lodging, and other expenditures ordered in the discretion of the court for their con\enience and comfort. (f) A juror who must necessarily use public transportation in tra\clling to and from court, the full cost of which is not met by the transportation expenses allowable under subsection (c) of this section on account of the short distance traveled in miles, may be paid, in the discretion of the court, the actual reasonable expense of such public transportation, pursuant to the methods of payment provided by this section. Jurors who are required to remain at the court beyond the normal business closing hour for deliberation or for any other reason may be transported to their homes, or to temporary lodgings where such 298 Selected Provisions from Title 28 Section 1875 lodgings are ordered b\' the court, in a manner directed b> the clerk and paid from funds authorized under this section. (g) The Director of the Administrative Office of the United States Courts shall promulgate such regulations as may be necessary- to carr>- out his authority- under this section. SI 872. Issues of f.'kct in Supreme Court In all original actions at law in the Supreme Court against citizens of the United States, issues of fact shall be tried bv a jurv. ^1873. ADMIRALTi' AND MARITIME CASES In any case of admiralty- and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of Kvent\' tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation betueen places in different states upon the lakes and navigable waters connectmg said lakes, the trial of all issues of fact shall be by jur\- if either party- demands it. SI 87 5. Protection of jurors' employment (a) No employer shall discharge, threaten to discharge, intimidate, or coerce any permanent employee bv- reason of such employee's jurv- service, or the attendance or scheduled attendance in connection with such service, in any court of the United States. (b) Any employer who violates the provisions of this section — (1) shall be liable for damages for any loss of wages or other benefits suffered by an employee bv reason of such violation; (2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the re- instatement of any employee discharged by reason of his jury- senice; and (3) shall be subject to a civil penaltv- of not more than SI, 000 for each violation as to each employee. (c) Any individual who is reinstated to a position of employment in accor- dance w ith the provisions of this section shall be considered as having been on furlough or leave of absence during his period of jurs service, shall be re- instated to his position of employment without loss of seniority-, and shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to emplovees on furlough or leave of absence in effect with the employer at the time such individual entered upon jur\- service. (d)(Il An individual claiming that his employer has violated the provisions of this section mav- make application to the district court for the district in which 299 Section 1875 Selected Provisions from Title 28 such employer maintains a place of business and the court shall, upon finding probable merit in such claim, appoint counsel to represent such individual in any action in the district court necessary to the resolution of such claim. Such counsel shall be compensated and necessary expenses repaid to the extent provided by section 3006A of title 18, United States Code. (2) in any action or proceeding under this section, the court may award a prevailing employee who brings such action by retained counsel a reasonable attorney's fee as part of the costs. The court may tax a defendant employer, as costs payable to the court, the attorney fees and expenses incurred on behalf of a prevailing employee, where such costs were expended by the court pursuant to paragraph (1) of this subsection. The court may award a prevailing employer a reasonable attorney's fee as part of the costs only if the court finds that the action is frivolous, vexatious, or brought in bad faith. Chapter 123. Fees and Costs 51914. District court; filing and miscellaneous fees; rules of court (a) The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $60, except that on application for a writ of habeas corpus the filing fee shall be $5. (b) The clerk shall collect from the parties such additional fees only as are prescribed by the Judicial Conference of the United States. (c) Each district court by rule or standing order may require advance pay- ment of fees. (d) This section shall not apply to the District of Columbia. 51915. Proceedings IN FORMA PAUPERIS (a) Any court of the United States may authorize the commencement, prose- cution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affi- ant's belief that he is entitled to redress. An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. (b) In any civil or criminal case the court may, upon the filing of a like affidavit, direct that the expense of printing the record on appeal, if such printing is required by the appellate court, be paid by the United States, and the same shall be paid when authorized by the Director of the Administrative Office of the United States Courts. (c) The officers of the court shall issue and serve all process, and perform all 300 Selected Provisions from Title 28 Section 1923 duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases. (d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of po\erh is untrue, or if satisfied that the action is frivolous or malicious. (e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing parts-, the same shall be taxed in favor of the United States. J 19 19. District courts; dismissal for lack of jurisdiction Whenever any action or suit is dismissed in any district court for want of jurisdiction, such court may order the payment of just costs. S1920. T.^XATiON of costs A judge or clerk of any court of the United States may tax as costs the following: ( 1 ) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case: (5) Docket fees under section 1923 of this title. (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. .•\ bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree. S1923. Docket fees AND costs OF BRIEFS (a) Attorney's and proctor's docket fees in courts of the United States may be taxed as costs as follows: S20 on trial or final hearing (including a default judgment whether entered by the court or by the clerk) in ci\il, criminal, or admiralh- cases, except that in cases of admiralt>' and maritime jurisdiction where the libellant recovers less than S50 the proctor's docket fee shall be SIO; $20 in admiralty appeals involving not over $1,000; $50 in admiralty appeals involving not over $5,000; $100 in admiralty appeals invoking more than $5,000; $5 on discontinuance of a civil action; 301 Section 1923 Selected Provisions from Title 28 $5 on motion for judgment and other proceedings on recognizances; $2.50 for each deposition admitted in evidence. (b) The docket fees of the United States attorneys shall be paid to the clerk of court and by him paid into the Treasury. (c) In admiralty appeals the court may allow as costs for printing the briefs of the successful party not more than: $25 where the amount involved is not over $1,000; $50 where the amount involved is not over $5,000; $75 where the amount involved is over $5,000. S1927. Counsel's liability for excessive costs Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisf\' personally such excess costs. ^929. Extraordinary expenses not expressly authorized Where the ministerial officers of the United States incur extraordinary ex- pense in executing Acts of Congress, the payment of which is not specifically provided for, the Attorney General may allow the payment thereof. Chapter 125. Pending Actions and Judgments ;il961. Interest (a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-hvo- week United States Treasury bills settled immediately prior to the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges; and (b) Interest shall be computed daily to the date of payment except as pro\ided in section 2516(b) of title 28, and section 1304(b) of title 31, and shall be compounded annually. (c)(1) This section shall not apply in any judgment of any court with respect to any internal revenue tax case. Interest shall be allowed in such cases at a rate established under section 6621 of the Internal Revenue Code of 1954. 302 Selected Provisions from Title 28 Section 2071 (2) Except as otherwise provided in paragraph (1) of this subsection, inter- est shall be allowed on all final judgments against the United States in the United States Court of Appeals for the Federal Circuit, at the rate provided in subsection (a) and as pro\ided in subsection (b). (3) Interest shall be allowed, computed, and paid on judgments of the United States Claims Court only as provided in paragraph (1) of this subsection or in any other provision of law. (4) This section shall not be construed to affect the interest on any judg- ment of any court not specified in this section. !il963. Registration in other districts A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where regis- tered and may be enforced in like manner. A certified copy of the satisfaction of any judgment in whole or in part may be registered in like manner in any district in which the judgment is a lien. $1964. Constructive notice of pending actions Where the law of a State requires a notice of an action concerning real property pending in a court of the State to be registered, recorded, docketed, or indexed in a particular manner, or in a certain office or county or parish in order to give constructive notice of the action as it relates to the real property, and such law authorizes a notice of an action concerning real property pending in a United States district court to be registered, recorded, docketed, or indexed in the same manner, or in the same place, those requirements of the State law must be complied with in order to give constructive notice of such an action pending in a United States district court as it relates to real propert)' in such State. Chapter 131. Rules of Courts $2071. Rule-making power generally The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure pre- scribed by the Supreme Court. 303 Section 2072 Selected Provisions from Title 28 !I2072. Rules of civil procedure The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions, including admiralty and maritime cases, and appeals therein, and the practice and procedure in proceedings for the review by the courts of appeals of deci- sions of the Tax Court of the United States and for the judicial review or enforcement of orders of administrative agencies, boards, commissions, and officers. Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution. Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court. !i2076. Rules of evidence The Supreme Court of the United States shall have the power to prescribe amendments to the Federal Rules of Evidence. Such amendments shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session of Congress but not later than the first day of May, and until the expiration of one hundred and eighty days after they have been so reported; but if either House of Congress within that time shall by resolution disapprove any amendment so reported it shall not take effect. The effective date of any amendment so reported may be deferred by either House of Congress to a later date or until approved by Act of Congress. Any rule whether proposed or in force may be amended by Act of Congress. Any provi- sion of law in force at the expiration of such time and in conflict with any such amendment not disapproved shall be of no further force or effect after such amendment has taken effect. Any such amendment creating, abolishing, or modifying a privilege shall have no force or effect unless it shall be approved by Act of Congress. [Unlike the Federal Rules of Civil Procedure, the Federal Rules of Evidence are statutory in nature. Thus the provision above does not provide for promul- gation of the rules by the Supreme Court but does provide for their amend- ment, subject to Congressional disapproval.] 304 Selected Provisions from Title 28 Section 2101 5(2077. Publication of rules; admsory committees (a) The rules for the conduct of the business of each court of appeals, including the operating procedures of such court, shall be published. Each court of appeals shall print or cause to be printed necessan- copies of the rules. The judicial Conference shall prescribe the fees for sales of copies under section 1913 of this title, but the Judicial Conference may pro\ide for free distribution of copies to members of the bar of each court and to other inter- ested persons. (b) Each court of appeals shall appoint an ad\isoPi- committee for the study of the rules of practice and internal operahng procedures of the court of appeals. The ad\isory committee shall make recommendations to the court concerning such rules and procedures. Members of the committee shall serve without compensation, but the Director may pay travel and transportation expenses in accordance with section 5705 of title 5. Chapter 133. Review — Miscellaneous Provisions S2101. Supreme Court; time for appeal or certior.ari; docketing; STAY (a) A direct appeal to the Supreme Court from any decision under sections 1252, 1253 and 2282 of this title, holding unconstitutional in whole or in part, an> Act of Congress, shall be taken within thirty days after the entry of the interlocutory or final order, judgment or decree. The record shall be made up and the case docketed within sixt\' days from the time such appeal is taken under rules prescribed by the Supreme Court. (b) Any other direct appeal to the Supreme Court which is authorized by law, from a decision of a district court in any civil action, suit or proceeding, shall be taken within thirt\' days from the judgment, order or decree, appealed from, if interlocutory, and within sixty days if final. (c) Any other appeal or any writ of certiorari intended to bring any judgment of decree in a civil action, suit or proceeding before the Supreme Court for re\ iew shall be taken or applied for within ninety days after the entr) of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for appKing for a writ of certiorari for a period not exceeding sixty days. (d) The hme for appeal or application for a writ of certiorari to review the judgment of a State court in a criminal case shall be as prescribed by rules of the Supreme Court; (e) .\n application to the Supreme Court for a writ of certiorari to review a case before judgment has been rendered in the court of appeals may be made at any time before judgment; 305 Section 2101 Selected Provisions fiom Title 28 (f ) In any case in which the final judgment or decree of an\ court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court, and may be conditioned on the giving of security, approved by such judge or justice, that if the aggrieved party fails to make application for such writ within the period allotted therefor, or fails to obtain an order granting his application, or fails to make his plea good in the Supreme Court, he shall answer for all damages and costs which the other party may sustain by reason of the stay. (g) Tlie time for application for a writ of certiorari to review a decision of the United States Court of Military Appeals shall be as prescribed by rules of the Supreme Court. S2102. Priority of criminal case on appeal from State court Criminal cases on review from State courts shall have priority, on the docket of the Supreme Court, over all cases except cases to which the United States is a party and such other cases as the court may decide to be of public importance. ^2103. Appeal from State court or from a United States court of APPEALS IMPROVIDENTLY TAKEN REGARDED AS PETITION FOR WRIT OF certiorari If an appeal to the Supreme Court is improvidently taken from the decision of the highest court of a State, or of a United States court of appeals, in a case where the proper mode of a review is by petition for certiorari, this alone shall not be ground for dismissal; but the papers whereon the appeal was taken shall be regarded and acted on as a petition for writ of certiorari and as if duly presented to the Supreme Court at the time the appeal was taken. Where in such a case there appears to be no reasonable ground for granting a petition for writ of certiorari it shall be competent for the Supreme Court to adjudge to the respondent reasonable damages for his delay, and single or double costs. ^2104. Appeals from State courts An appeal to the Supreme Court from a State court shall be taken in the same manner and under the same regulations, and shall have the same effect, as if the judgment or decree appealed from had been rendered in a court of the United States. 306 Selected Provisions from Title 28 Section 2109 J2105. Scope OF REVIEW; ABATEMENT There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction. S2106. Determination The Supreme Court or any other court of appellate jurisdiction may affirm, modif,', vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as ma\ be just under the circumstances. ^2107. Time for appeal to court of appeals Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree. In any such action, suit or proceeding in which the United States or an officer or agenc\ thereof is a party , the time as to all parties shall be sixty days from such entry. In any action, suit or proceeding in admiralty, the notice of appeal shall be filed within ninety days after the entry of the order, judgment or decree appeals from, if it is a final decision, and within fifteen days after its entry if it is an interlocutory decree. The district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed, upon a showing of excusable neglect based on failure of a party to learn of the entPi' of the judgment, order or decree. This section shall not applv to bankruptcv matters or other proceedings under Title II. S2108. Proof of amount in controversy Where the power of any court of appeals to review a case depends upon the amount or \alue in controversy, such amount or value, if not otherwise satis- factorily disclosed upon the record, may be shown and ascertained by the oath of a parh- to the case or by other competent evidence. ^2109. Quorum of Supreme Court justices absent If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of 307 Section 2109 Selected Provisions from Title 28 qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in com- mission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 1 5 of this title. In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally di\ided court. )i2111. Harmless ERROR On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties. SZin. Definition For purposes of this chapter, the terms "State court," "State courts," and "highest court of a State" include the District of Columbia Court of Appeals. Part VI. Particular Proceedings Chapter 151. Declaratory Judgments jiZZOl. Creation OF REMEDY In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. S2202. Further relief Further necessary or proper relief based on a declaratory judgment or decree ma>' be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. 308 Selected Provisions from Title 28 Section 2284 Chapter 155. Injunctions; Three- Judge Courts [$2281. Repealed.] [J2282. Repealed.] S2283. Stay of State court proceedings A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by .-^ct of Congress, or where necessar)' in aid of its jurisdiction, or to protect or effectuate its judgments. $2284. Three-judge court; when required; composition; procedure (a) A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionalih' of the apportionment of congressional districts or the apportionment of any statewide legislative body. (b) In any action required to be heard and determined by a district court of three judges under subsection (a) of this section, the composition and proce- dure of the court shall be as follows: (1) Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notif> the chief judge of the circuit, who shall designate hvo other judges, at least one of whom shall be a circuit judge. The judges so designated, and the judge to whom the request was presented, shall serve as members of the court to hear and determine the action or proceeding. (2) If the action is against a State, or officer or agency thereof, at least five days' notice of hearing of the action shall be given by registered or certified mail to the Governor and attorney general of the State. (3) A single judge may conduct all proceedings except the trial, and enter all orders permitted by the rules of civil procedure except as provided in this subsection. He may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irrepara- ble damage will result if the order is not granted, which order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the district court of three judges of an application for a preliminary injunction. A single judge shall not appoint a master, or order a reference, or hear and determine any application for a preliminary or permanent injunction or motion to vacate such an injunction, or enter judgment on the merits. Any action of a single judge may be reviewed by the full court at any time before final judgment. 309 Section 2361 Selected Provisions from Title 28 Chapter 159. Interpleader \2?61. Process AND PROCEDURE In any civil action of interpleader or in the nature of interpleader under section n35 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court. Such process and order shall be returnable at such time as the court or judge thereof directs, and shall be addressed to and served by the United States marshals for the respective districts where the claimants reside or may be found. Such district court shall hear and determine the case, and may discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment. [See also SS1355 and 1397.] Chapter 161. United States as Party Generally ^2401. Time for commencing action against United States (a) Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the com- plaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 52402. Jury trial in actions against United States Any action against the United States under section 1 346 shall be tried by the court without a jury, except that any action against the United States under section 1346(a)(1) shall, at the request of either party to such action, be tried by the court with a jury. 52403. Intervention by United States or a State; constitutional question (a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, office or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public inter- est is drawn in question, the court shall certifv' such fact to the Attorney 310 Selected Provisions from Title 28 Section 2412 General, and shall permit the United States to intervene for presentation of e\idence. if evidence is otherwise admissible in the case, and for argument on the question of constitutionalitv'. The United States shall subject to the applica- ble provisions of law, have all the rights of a part\' and be subject to all liabilities of a part)' as to court costs to the extent necessarv' for a proper presentation of the facts and law- relating to the question of constitutionalit\\ (b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionalitv . The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a part)- as to court costs to the extent necessary for a proper presentation of the facts and law- relating to the question of constitutionality. $2412. Costs and fees (a) Except as otherwise specificalK provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing part)- in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdic- tion of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing part)- for the costs incurred by such part)' in the litigation. (b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing part)- in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacit)- in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other part) would be liable under the common law or under the terms of any statute which specifically pro\ ides for such an award. (cKl ) ."^ny judgment against the United States or any agency and an)' official of the United States acting in his or her official capacih- for costs pursuant to subsection (a) shall be paid as provided in sections 2414 and 2517 of this title and shall be in addition to an) relief provided in the judgment. (2) Any judgment against the United States or any agency and any official of the United States acting in his or her official capacih- for fees and expenses of attorneys pursuant to subsection (b) shall be paid as pro- vided in sections 2414 and 2517 of this title, except that if the basis for the award is a finding that the United States acted in bad faith, then 311 Section 2412 Selected Provisions from Title 28 the award shall be paid by any agency found to have acted in bad faith and shall be in addition to any relief provided in the judgment. (d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other ex- penses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings, for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized state- ment from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was sub- stantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. (C) The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final reso- lution of the matter in controversy. (2) For the purposes of this subsection — (A) "fees and other expenses" includes the reasonable expenses of ex- pert witnesses, the reasonable cost of any study, analysis, engineer- ing report, test, or project which is found by the court to be neces- sary for the preparation of the party's case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availabilih' of qualified attorneys for the proceedings involved, justifies a higher fee.); 312 Selected Pro\isions from Title 28 Section 2412 (B) "part\" means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organi- zation, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the ci\il action was filed; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association; (C) "United States" includes any agency and any official of the United States acting in his or her official capacih ; (D) "position of the United States" means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the ci\il action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the part\' has unreasonably pro- tracted the proceedmgs; (E) "civil action brought by or against the Unites States" includes an appeal by a party, other than the United States, from a decision of a contracting officer rendered pursuant to a disputes clause in a contract with the Government or pursuant to the Contract Disputes Act of 1978; (F) "court" includes the United States Claims Court; (G) "final judgment" means a judgment that is final and not appeal- able, and includes an order of settlement; and (H) "prevailing party", in the case of eminent domain proceedings, means a party who obtains a final judgment (other than by settle- ment), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government. (3) In awarding fees and other expenses under this subsection to a pre\ail- ing party in any action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Code, or an ad\ersary adjudication subject to the contract Dis- putes Act of 1978, the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such sec- tion, unless the court finds that during such adversar\' adjudication the 313 Section 2412 Selected Provisions from Title 28 position of the United States was substantially justified, or that special circumstances make an award unjust. {4)(A) Fees and other expenses awarded under this subsection to a party shall be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise. (5) The Director of the Administrative Office of the United States Courts shall include in the annual report prepared pursuant to section 604 of this tide, the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this subsection. The report shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards. (e) The provisions of this section shall not apply to any costs, fees, and other expenses in connection with any proceeding to which section 7430 of the Internal Revenue Code of 1954 applies (determined without regard to subsec- tions (b) and (f) of such section). Nothing in the preceding sentence shall prevent the awarding under subsection (a) of section 2412 of title 28, United States Code, of costs enumerated in section 1920 of such tide (as in effect on October 1, 1981). (f) If the United States appeals an award of costs or fees and other expenses made against the United States under this section and the award is affirmed in whole or in part, interest shall be paid on the amount of the award as affirmed. Such interest shall be computed at the rate determined under section 1961(a) of this title, and shall run from the date of the award through the day before the date of the mandate of affirmance. 314 PART II CASE SUPPLEMENT ERRATA AND UPDATES [The following is a list of errata and significant changes since the publication of the casebook that may make items in it significantly misleading. (Cf Rule 26(e)(2).)] Page 184. Landsverk v. Studebaker-Packard, cited in note 2(a), was overruled in Werner V. Werner, 84 Wash. 2d 360, 526 P.2d 370 (1974). For a different example of a state rejecting forum non conveniens, see Trahan v. Phoenix Ins. Co., 200 So. 2d 118 (La. Ct. App. 1967). Page 206. Note 5. The $10,000 requirement no longer applies to federal question cases. See 28 U.S.C. S1331. Page 240. In the second bracketed paragraph of Guaranty Trust Co. v. York, it should be stated that the former action was in federal court and that the dismissal was for failure to establish fraud, a trust, or monetary damage, rather than because of the statute of limitations. Page 264. The particular arbitration system described in connection with Edelson v. Soricelli was declared unconstitutional under the state constitution by the Pennsylvania Supreme Court in Mattos v. Thompson, 491 Pa. 385, 421 A. 2d 190 (1980), on the grounds that the delay it caused effectively denied a right to jun,' trial. Page 278. The Supreme Court decided in Cit\' of Milwaukee v. Illinois, 451 U.S. 304 (I98I), that passage of a statute after its decision in Illinois \'. City of Milwau- kee, which covered the matters complained of by the state of Illinois, had removed the need for anv federal common law in the area. 317 Errata and Updates Page 511. Hawaii v. Standard Oil Co., cited as a limitation on the right of the state to represent its citizens in a parens patriae capacit>', was legislatively overturned in the antitrust context by the 1976 Hart-Scott-Rodino Act, 15 U.S.C. ^\Sc. Page 958. The question of full faith and credit to child custody decrees has been affected significantly by the passage of a special full faith and credit statute, 28 U.S.C. S1738A, on the subject. The text of the statute may be found elsewhere in this volume with other selected provisions of 28 U.S.C. 318 I JURISDICTION II A. In Personam Jurisdiction 1. Background and Constitutional Limitations Page 100. Before 2. Long Arm Statutes, add: Keeton v. Hustler Magazine, Inc. 104 S. Ct. 147^ (1984) Justice Rehnquist deli\ered the opinion of the Court. Petitioner Kathy Keeton sued respondent Hustler Magazine, Inc., and other defendants in the I'nited States District Court for the District of New Hamp- shire, alleging jurisdiction o\er her libel complaint b\- reason of di\ersih of citizenship. The district court dismissed her suit because it be!ie\ed that the Due Process Clause of the Fourteenth Amendment of the United States Con- stitution forbade the application of New Hampshire's long-arm statute in order to acquire personal jurisdiction over respondent. The Court of Appeals for the First Circuit affirmed, summarizing its concerns with the statement that "the New Hampshire tail is too small to wag so large an out-of-state dog." We granted certiorari and we now reverse. Petitioner Keeton is a resident of New York. Her only connection w ith Neu Hampshire is the circulation there of copies of a magazine that she assists in producing. The magazine bears petitioner's name in several places crediting her with editorial and other uork. Respondent Hustler Magazine, Inc.. is an Ohio corporation, with its principal place of business in California. Resjxjn- dent's contacts with New Hampshire consist of the sale of some 10 to 15,000 copies of Hustler magazine in the State each month. Petitioner claims to ha\c been libeled in fi\e separate issues of respondent's magazine published beh\ een September, 1975, and May, 1976.' The Court of .Appeals, in its opinion affirming the District Court's dismissal of petitioner's complaint, held that petitioner's lack of contacts with New 1. Initially, petitioner brought suit for libel and invasion of privacv in Ohio, where the maga- zine was published. Her libel claim, however, was dismissed as barred by the Ohio statute of limitations, and her in\asion of privacy claim was dismissed as barred by the New York statute of limitations, which the Ohio court considered to be "migratory. " Petitioner then filed the present action in October, 1980. 319 Page 100 Jurisdiction Hampshire rendered tlie State's interest in redressing the tort of libel to peti- tioner too attenuated for an assertion of personal jurisdiction over respondent. The Court of Appeals observed that the "single publication rule" ordinarily applicable in multistate libel cases would require it to award petitioner "dam- ages caused in all states" should she prevail in her suit, even though the bulk of petitioner's alleged injuries has been sustained outside New Hampshire." The court also stressed New Hampshire's unusually long (6-year) limitations period for libel actions. New Hampshire was the only State where petitioner's suit would not have been time-barred when it was filed. Under these circum- stances, the Court of Appeals concluded that it would be "unfair" to assert jurisdiction over respondent. New Hampshire has a minimal interest in apply- ing its unusual statute of limitations to, and awarding damages for, injuries to a nonresident occurring outside the State, particularly since petitioner suffered such a small proportion of her total claimed injury within the State. We conclude that the Court of Appeals erred when it affirmed the dismissal of petitioner's suit for lack of personal jurisdiction. Respondent's regular circu- lation of magazines in the forum State is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine. This is so even if New Hampshire courts, and thus the District Court under Klaxon Co. v. Stentor Co., would apply the so-called "single publication rule" to enable petitioner to recover in the New Hampshire action her damages from "publica- tions" of the alleged libel throughout the United States.' The district court found that "[t]he general course of conduct in circulating magazines throughout the state was purposefully directed at Nev\ Hampshire, and inevitably affected persons in the state." Such regular monthly sales of thousands of magazines cannot by any stretch of the imagination be character- ized as random, isolated, or fortuitous. It is, therefore, unquestionable that New Hampshire jurisdiction over a complaint based on those contacts would ordi- narily satisfy the requirement of the Due Process Clause that a State's assertion of personal jurisdiction over a nonresident defendant be predicated on "minimum contacts" between the defendant and the State. See World-Wide Volkswagen Corp. V. Woodson; International Shoe Corp. v. Washington. And, as the Court of Appeals acknowledged. New Hampshire has adopted a "long-arm" statute authorizing service of process on nonresident corporations whenever permitted b\ the Due Process Clause. I'hus, all the requisites for personal jurisdiction over Hustler Magazine, inc., in New Hampshire are present. 2 The ".single publication rule" has been summarized as follows: As to any single publication, (a) only one action for damages can be maintained: (b) all damages suffered in all jurisdictions can be recovered in the one action: and (c) a judgment for or against the plaintiff upon the merits of any action for damages bars am other action for damages between the same parties in all jurisdictions. Restatement (Second) of Torts \577.M4l (1977). V "It is the general rule that each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises." Restatement (Second) of Torts S577A. Comment a{ 1971). The "single publication rule" is an exception to this general rule. 320 Jurisdiction Page 100 We think that the three concerns advanced by the Court of Appeals, whether considered singly or together, are not sufficiently weighty to merit a different result. The "single publication rule," New Hampshire's unusually long statue of limitations, and plaintiffs lack of contacts with the forum State do not defeat jurisdiction otherwise proper under both Nev\ Hampshire law and the Due Process Clause. In judging minimum contacts, a court properly focuses on "the relationship among the defendant, the forum, and the litigation." Shaffer \'. Heitner. See also Rush V. Savchuk. Thus, it is certainly relevant to the jurisdictional inquiry' that petitioner is seeking to reco\er damages suffered in all States in this one suit. The contacts between respondent and the forum must be judged in the light of that claim, rather than a claim only for damages sustained in New Hampshire. That is, the contacts between respondent and New Hampshire must be such that it is "fair" to compel respondent to defend a multistate lawsuit in New Hampshire seeking.nationwide damages for all copies of the five issues in question, even though only a small portion of those copies were distributed in New Hampshire. The Court of Appeals expressed the \iew that New Hampshire's "interest" in asserting jurisdiction over plaintiffs multistate claim was minimal. We agree that the "fairness" of haling respondent into a New Hampshire court depends to some extent on whether respondent's activities relating to Nev\' Hampshire are such as to give that State a legitimate interest in holding respondent an- swerable on a claim related to those activities. But insofar as the State's "inter- est" in adjudicating the dispute is a part of the Fourteenth Amendment due process equation, as a surrogate for some of the factors already mentioned, we think the interest is sufficient. The Court of Appeals acknowledged that petitioner was suing, at least in part, for damages suffered in New Hampshire. And it is beyond dispute that New Hampshire has a significant interest in redressing injuries that actually occur within the State. A state has an especial interest in exercising judicial jurisdiction o\er those who commit torts within its territor>. This is because torts invoke wrongful conduct which a state seeks to deter, and against which it attempts to afford protection, by providing that a tort-feasor shall be liable for damages which are the proximate result ofhistort. Leeperv. Leeper, 114N.H. 284, 298, 319 A.2d626, 629(1974)(quoting Restatement (Second) of Conflict of Laws ^56, Comment c (1971)). This interest extends to libel actions brought by nonresidents. False statements of fact harm both the subject of the falsehood and the readers of the statement. New Hampshire may rightly employ its libel laws to discourage the deception of its citizens. There is "no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc. New Hampshire may also extend its concern to the injur\ that in-state libel causes within New Hampshire to a nonresident. The tort of libel is generally held to occur wherever the offending material is circulated. Restatement (Sec- 321 Page 100 Jurisdiction ond) of 'I'orts S577A, Comment a (1977). The reputation of tlie libel \ictini may suffer harm even in a state in which he has hitherto been anonymous. The communication of the libel may create a negative reputation among the residents of a jurisdiction where the plaintiffs pre\ious reputation was, however small, at least unblemished. New Hampshire has clearly expressed its interest in protecting such persons from libel, as well as in safeguarding its populace from falsehoods. Its criminal defamation statute bears no restriction to libels of which residents are the victim. Moreover, in 1971 New Hampshire specifically deleted from its long- arm statute the requirement that a tort be committed "against a resident of New Hampshire." New Hampshire also has a substantial interest in cooperating with other States, through the "single publication rule," to provide a forum for efficiently litigating all issues and damage claims arising out of a libel in a unitary proceeding. This rule reduces the potential serious drain of libel cases on judicial resources. It also serves to protect defendants from harassment resulting from multiple suits. Restatement (Second) of Torts Ji577A, comment f (1977). In sum, the combination of New Hampshire's interest in redressing injuries that occur within the State and its interest in cooperating with other States in the application of the "single publication rule" demonstrate the propriety of requiring respondent to answer to a multistate libel action in New Hampshire.' The Court of Appeals also thought that there was an element of due process "unfairness" arising from the fact that the statutes of limitations in every juris- diction except New Hampshire had run on the plaintiff's claim in this case.'" Strictly speaking, however, any potential unfairness in applying Nev\' Hamp- shire's statute of limitations to all aspects of this nationwide suit has nothing to do with the juri.sdiction of the Court to adjudicate the claims. "The issue is personal jurisdiction, not choice of law. " Hanson v. Denckla. The question of the applicability of New Hampshire's statute of limitations to claims for out-of- state damages presents itself in the course of litigation only after jurisdiction over respondent is established, and we do not think that such choice of law concerns should complicate or distort the jurisdictional inquiry. The chance duration of statutes of limitations in nonforum jurisdictions has 9. Of course, to conclude that petitioner may properly seek multistate damages in this New Hampshire suit is not to conclude thai such damages should, in fact, be awarded if petitioner makes out her case for libel. The actual applicability of the "single publication rule" in the peculiar circumstances of this case is a matter of substantive law. not personal iurisdiction. We conclude only that the district court has jurisdiction to entertain petitioner's multistate libel suit, 10. Under traditional choice of law principles, the law of the forum Stale governs on matters of procedure. In New Hampshire, statutes of limitations are considered procedural. There has been considerable academic criticism of the rule that permits a forum Slate to apply its own statue of limitations regardless of the significance of contacts between the forum State and the litigation. See. e.g.. Weintraub, Commentary on the Conflict of Laws S9.2B at 517 l2d ed. 1980); Martin, Constitutional Limitations on Choice of Law, 61 Cornell L. Rev. 185, 221 (1976); Lorenzen. The State of Limitations and The Conflict of Laws, 28 Yale L.| 492. 296-497 (1919). But we find it unnecessary to express an opinion at this time as to whether any arguable unfairness rises to the level of a due process violation. 322 Jurisdiction Page 100 nothing to do with the contacts among respondent. New Hampshire, and this multistate hbel action. Whether Ohio's hmitations period is six months or six years does not alter the jurisdictional calculus in New Hampshire. Petitioner's successful search for a State with a lengthy statute of limitations is no different from the litigation strategy of countless plaintiffs who seek a forum with fa\or- able substantive or procedural rules or sympathetic local populations. Certainly Hustler Magazine, Inc., which chose to enter the New Hampshire market, can be charged with knowledge of its laws and no doubt would have claimed the benefit of them if it had a complaint against a subscriber, distributor, or other commercial partner. Finally, implicit in the Court of Appeals' analysis of Nev\ Hampshire's inter- est is an emphasis on the extremely limited contacts of the plaintiff with New Hampshire. But we have not to date required a plaintiff to ha\e "minimum contacts" with the forum State before permitting that State to assert personal jurisdiction over a nonresident defendant. On the contrary, we have upheld the assertion of jurisdiction where such contacts were entirely lacking. In Perkins v. Benguet Mining Co., none of the parties was a resident of the forum State; indeed, neither the plaintiff nor the subject-matter of his action had any rela- tion to that State. Jurisdiction was based solely on the fact that the defendant corporation has been carrying on in the forum "a continuous and systematic, but limited, part of its general business." In the instant case, respondent's activities in the forum may not be so substantial as to support jurisdiction over a cause of action unrelated to those activities." But respondent is carrying on a "part of its general business " in New Hampshire, and that is sufficient to support jurisdiction when the cause of action arises out of the very activity being conducted, in part, in New Hampshire. The plaintiff's residence is not, of course, completely irrelevant to the juris- dictional inquiry. As noted, that inquiry focuses on the relations among the defendant, the forum and the litigation. Plaintiff's residence may well play an important role in determining the propriety of entertaining a suit against the defendant in the forum. That is, plaintiff's residence in the forum may, be- cause of defendant's relationship with the plaintiff, enhance defendant's con- tacts with the forum. Plaintiff's residence may be the focus of the activities of the defendant out of which the suit arises. But plaintiff's residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of defendant's contacts. 1 1- The defendant corporation's contacts with the forum State in Perkins were more substantial than those of respondent with New Hampshire in this case. In Perkins, the corporation's mining operations, located in the Phillipinc Islands, were completely halted during the Japanese occupa- tion. The president, who was also general manager and principal stockholder of the company, returned to his home in Ohio where he carried on "a continuous and systematic supervision of the necessarily limited wartime activities of the company." The company's files were kept in Ohio, several directors' meeting were held there, substantial accounts were maintained in Ohio banks, and all key busmess decisions were made in the State. In those circumstances, Ohio was the corporation's principal, if temporary, place of business so that Ohio jurisdiction was proper even over a cause of action unrelated to the activities in the State. 323 Page 100 lurisdiction It is undoubtcdl) true tliat the bulk of the harm done to petitioner oecurred outside New Hampshire. But that will be true in almost e\ery libel action brought somewhere other than the plaintiff's domicile. There is no justification for restricting libel actions to the plaintiff's home forum. The victim of a libel, like the \ietim of any other tort, may choose to bring suit in any forum with which the defendant has "certain minimum contacts . . . such that the main- tenance of the suit does not offend 'traditional notions of fair play and substan- tial justice.' Milliken v. Meyer, 311 U.S. 457, 463. " International Shoe Co. v. Washington. Where, as in this case, respondent Hustler Magazine, Inc., has continuously and deliberately exploited the New Hampshire market, it must reasonably anticipate being haled into court there in a libel action based on the contents of its magazine. World-Wide Volkswagen Corp. v. Woodson. And, since respon- dent can be charged with knowledge of the "single publication rule, " it must anticipate that such a suit will seek nationwide damages. Respondent produces a national publication aimed at a nationwide audience. There is no unfairness in calling it to answer for the contents of that publication wherever a substantial number of copies arc regularly sold and distributed. The judgment of the Court of Appeals is reversed and the cause is remanded for proceedings consistent with this opinion. [A brief concurring opinion of Justice Brennan is omitted.] NOTES AND PROBLEMS 1 . The Supreme Court takes only a small fraction of the cases in which the parties seek its review, generally choosing cases in which there is an important unresolved issue. What issue in Keeton was important but unresolved by Inter- national Shoe? 2. The court of appeals in Keeton ruled that jurisdiction was absent because in order to have jurisdiction, a state must have an "interest" in the case, and the combination of Hustler's small circulation and Keeton 's lack of residence in New Hampshire meant there was no New Hampshire interest in the case. Did the Supreme Court reject or accept a need for state interest as a condition to jurisdiction? If the latter, what, in the Court's view, supplied that interest in Keeton, despite low circulation of the defendant's magazine and plaintiffs lack of connections with New Hampshire? ?. The Court seems to imply in the Keeton opinion that Keeton is simply a straightforward application of the principles of /nferna^/oncj/ S/ioe. But contrary to what the Court .says, isn't the single-publication rule (which made the result in Keeton possible) itself a violation of the minimum contacts requirement? That is, doesn't it allow a New Hampshire court to award damages for a libel that was committed outside New Hampshire and caused harm outside New Hampshire? (Of course, it also allows for recovery of damages for the libels that were committed inside New Hampshire and caused harm in New Hamp- 324 Jurisdiction Page 100 shire — i.e., the injury to plaintiffs reputation e\er> time a copy of Hustler that libeled her was read in New Hampshire. But is the plaintiff likely to be satisfied by, or even bother to bring suit for, damages limited to those suffered in New Hampshire?) In other words, doesn't the fiction created b\' the single- publication rule, that thousands of torts are really one and can be disposed of in one piece of litigation, obscure the fact that New Hampshire would clearly not have jurisdiction over some of those torts, such as those caused by the copies of Hustler that were read in California, or China? The fiction of the single-publication rule may be a good idea; for example, it protects defendants from multiple suits (one in each state) and allows a plaintiff to minimize costs. But once it is recognized that the single-publication rule does in fact bend the rules of International Shoe by allowing New Hampshire to dispose of torts unrelated to New Hampshire, might it not be reasonable, as a price to be paid for the single-publication rule, to require suit to be brought in a state that has something more than the bare minimum of contacts? Is Keeton a simple application of International Shoe? 4. In light of Keeton, why was jurisdiction denied in World-Wide Volkswagen? Calder v. Jones 104 S. Ct. 1482(19841 Justice Rehnquist delivered the opinion of the Court. Respondent Shirley Jones brought suit in California Superior Court claim- ing that she had been libeled in an article written and edited by petitioners in Florida. The article was published in a national magazine with a large circu- lation in California. Petitioners were served with process by mail in Florida and caused special appearances to be entered on their behalf, moving to quash the service of process for lack of personal jurisdiction. The superior court granted the motion on the ground that First Amendment concerns weighed against an assertion of jurisdiction otherwise proper under the Due Process Clause. The California Court of Appeal reversed, rejecting the sug- gestion that First Amendment considerations enter into the jurisdictional analysis. We now affirm. Respondent lives and works in California. She and her husband brought this suit against the National Enquirer, Inc., its local distributing company, and petitioners for libel, invasion of privacy, and intentional infliction of emotional harm. The Enquirer is a P'lorida corporation with its principal place of business in Florida. It publishes a national weckK' newspaper with a total circulation of over 5 million. About 600,000 of those copies, almost hvice the level of the next highest State, are sold in California. Respondent's and her husband's claims were based on an article that appeared in the Enquirer's October 9, 1979 issue. Both the Enquirer and the distributing company answered the complaint and made no objection to the jurisdiction of the California court. Pehtioner South is a reporter emplo\ed b\' the Enquirer. He is a resident of 325 Page 100 Jurisdiction Florida, though he frequently travels to California on business. South wrote the first draft of the challenged article, and his byline appeared on it. He did most of his research in Florida, relying on phone calls to sources in California for the information contained in the article.^ Shortly before publication, South called respondent's home and read to her husband a draft of the article so as to elicit his comments upon it. Aside from his frequent trips and phone calls. South has no other relevant contacts with California. Petitioner Calder is also a Florida resident. He has been to California only twice — once, on a pleasure trip, prior to the publication of the article and once after to testify in an unrelated trial. Calder is president and editor of the Enquirer. He "oversee[s] just about every function of the Enquirer." He re- viewed and approved the initial evaluation of the subject of the article and edited it in its final form. He also declined to print a retraction requested by respondent. Calder has no other relevant contacts with California. In considering petitioner's motion to quash service of process, the superior court surmised that the actions of petitioners in Florida, causing injury to respondent in California, would ordinarily be sufficient to support an assertion of jurisdiction over them in California. But the court felt that special solicitude was necessary because of the potential "chilling effect" on reporters and editors which would result from requiring them to appear in remote jurisdictions to answer for the content of articles upon which they worked. The court also noted that respondent's rights could be "fully satisfied" in her suit against the publisher without requiring petitioners to appear as parties. The superior court, therefore, granted the motion. The California Court of Appeal reversed. The court agreed that neither petitioner's contacts with California would be sufficient for an assertion of jurisdiction^ on a cause of action unrelated to those contacts. See Perkins v. Benguet Mining Co., 342 U.S. 437 (1952) (permitting general jurisdiction where defendant's contacts with the forum were "continuous and systematic"). But the court concluded that a valid basis for jurisdiction existed on the theory that petitioners intended to, and did, cause tortious injury to respondent in California. 'I'hc fact that the actions causing the effects in California were performed outside the State did not prevent the State from asserting jurisdiction over a cause of action arising out of those effects.*' The court rejected the superior court's conclusion that First Amendment considerations must be weighed in the scale against jurisdiction. . . . The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction o\er a defendant in any State with which the defendant has "certain minimum contacts . . . such tiiat the main- ■i. The superior court found that South made at least one trip to Cahfornia \n connection with the article. South hotly disputes this finding, claiming that an nncontroverted affida\it shows that he never visited California to research the article. Since we do not rely for our holding on the alleged visit, see n. 6 \infra], we find it unnecessary to consider the contention. 6. The Court of Appeal further suggested that petitioner South's investigative activities, includ- ing one visit and numerous phone calls to California, formed an independent basis for an assertion of jurisdiction over him in this action In light of our approval of the "effects" test employed by the California court, we find it unnecessary to reach this alternate ground. 326 Jurisdiction Page 100 tenance of the suit does not offend 'traditional notions of fair play and substan- tial justice.' Milliken v. Meyer, 311 U.S. 457, 463." International Shoe Co. v. Washington. In judging minimum contacts, a court properly focuses on "the relationship among the defendant, the forum, and the litigation." Shaffer v. Heitner [casebook, page 133]. See also Rush v. Savchuk [casebook, page 149]. The plaintiffs lack of "contacts" will not defeat otherwise proper jurisdiction, see Keeton v. Hustler Magazine, Inc., but they may be so manifold as to permit jurisdiction when it would not exist in their absence. Here, the plaintiff is the focus of the activities of the defendants out of which the suit arises. The allegedh libelous story concerned the California activities of a Califor- nia resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms both of respondent's emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point both of the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the "effects" of their Florida conduct in California. World-Wide Volkswagen Corp. v. Woodson; Restatement (Second) of Conflicts of Law ^37. Petitioners argue that they are not responsible for the circulation of the article in California. A reporter and an editor, they claim, have no direct economic stake in their employer's sales in a distant State. Nor are ordinarv employees able to control their employer's marketing activity. The mere fact that they can "foresee" that the article will be circulated and have an effect in California is not sufficient for an assertion of jurisdiction. World-Wide Volks- wagen Corp. V. Woodson; Rush v. Savchuk. They do not "in effect appoint the [article their] agent for service process. " World-Wide Volkswagen Corp. \'. Woodson. Petitioners liken themselves to a welder employed in Florida who works on a boiler which subsequently explodes in California. Cases v\hich hold that jurisdiction will be proper over the manufacturer should not be applied to the welder who has no control over and derives no direct benefit from his employer's sales in that distant State. Petitioners' analogy does not wash. Whatever the status of their hvpothctical welder, petitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at Cali- fornia. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentialK' devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must "reasonably anticipate being haled into court there " to answer for the truth of the statements made in their article. An indi\ idual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California. 9. The article alleged that respondent drank so hea\il\ as to pre\ent her from fulfilling her professional obligations. 327 Page 100 Jurisdiction Petitioners are correct that their contacts with California are not to be judged according to their employer's activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. F^ach defen- dant's contacts with the forum State must be assessed indi\idually. See Rush v. Savchuk ("The requirements of International Shoe . . . must be met as to each defendant o\er whom a state court exercises jurisdiction"). In this case, peti- tioners are primar> participants in an alleged wrongdoing intentionalK directed at a California resident, and jurisdiction over them is proper on that basis. We also reject the suggestion that First Amendment concerns enter into the jurisdictional analysis. The infusion of such considerations would needlessly complicate an already imprecise inquiry. Moreover, the potential chill on protected First Amendment activity stemming from libel and defamation ac- tions is already taken into account in the constitutional limitations on the substantive law governing such suits. See New York limes, Inc. v. Sullivan; Gertz v. Robert Welch, Inc. To reintroduce those concerns at the jurisdic- honal stage would be a form of double counting. We have already declined in other contexts to grant special procedural protections to defendants in libel and defamation actions in addition to the constitutional protections embodied in the substantive laws. We hold that jurisdiction over petitioners in California is proper because of their intentional conduct in Florida calculated to cause injur\- to respondent in California. I'he judgment of the California Court of Appeal is affirmed. NOTES AND PROBLEMS 1. What issues were resoKed b\ Calder that were not resoKed by Keeton and World-Wide Volkswagen? 2. How can Calder, which upheld jurisdiction, be distinguished from World- Wide Volkswagen, which denied it? 3. The Keeton court, in a footnote omitted from the case as set out supra, elaborated on the relationship between jurisdiction over an employer and juris- diction over an employee, and tied that relationship to its decision in Calder. Footnote 1 3 of Keeton says: In addition to Hustler Magazine, Inc., Larry FKiit, the publisher, editor and owner of the magazine, and L. F. P., Inc. Hustler's holding company, were named as defendants in the District Court. It does not of course follow from the fact that jurisdiction may be asserted over Hustler Magazine, Inc., that jurisdic- tion may also be asserted over either of the other defendants. In Calder v. Jones, we today reject the suggestion that employees who act in their official capacit) are somehow shielded from suit in their individual capacit>. But jurisdiction over an employee does not automaticalK follow from jurisdiction over the corporation which cmplo>s him; nor docs jurisdiction over a parent corporation automatically establish jurisdiction oxer a v\holly owned subsidiary. Each defendant's contacts With the forum State must be assessed individually. See Rush \. Sa\chuk ("The requirements of International Shoe . . . must be met as to each defendant over 328 Jurisdiction Page 100 whom a state court exercises jurisdiction"). Because the Court of Appeals con- cluded that jurisdiction could not be had even against Hustler Magazine, Inc., it did not inquire into the propriet>' of jurisdiction over the other defendants. Such inquiry is, of course, open upon remand. Burger King Corporation v. Rudzewicz 105 S. Ct. 2174(1985) Justice Brennan delivered the opinion of the Court. [Burger King operates an extensive fast food franchise system in which it trains franchisees and regulates their operations in detail. Headquarters are in Florida, but regional offices supervise franchisees in their areas. Rudzewicz (a partner in an Detroit accounting firm) and MacShara negotiated to buy a franchise in Michigan. Discussions involved both the Michigan regional office and the headquarters in Florida; the resulting contract apparently deviated little from Burger King's standard franchise agreement. Shortly after the agreement was signed, business at the franchise began to deteriorate. When rent payments fell behind. Burger King first negotiated, then sued in federal district court in Florida, invoking both diversity and trademark jurisdiction. Rudzewicz and McShara appeared specially and challenged personal jurisdiction. The district court rejected their challenge. The case went to trial, at which the judge awarded Burger King both damages and injunctive relief. A divided) panel of [the Eleventh] Circuit reversed the judgment, concluding that the District Court could not properly exercise personal jurisdiction over Rudzewicz pursu- ant to Fla. Stat. ;i48. 193(1 )(g) (Supp. 1984) because "the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of fran- chise litigation in Florida.". . . [W]e . . . reverse. The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful "contacts, ties, or relations." International Shoe Co. v, Washing- ton.'' By requiring that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign," Shaffer v. Heitner, (Stevens, J., concurring in judgment), the Due Process Clause "gives 13. Although this protection operates to restrict state power, if "must be seen as ultimately a function of the individual liberty interest presened by the Due Process Clause" rather than as a function "of federalism concerns." Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee. 456 U.S. 694, 702-703. n. 10 (1982). 329 Page 100 Jurisdiction a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit," World-Wide Volk- swagen Corp. V. Woodson. Where a forum seeks to assert specific jurisdiction over an out-of-state defen- dant who has not consented to suit there. '^ this "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., and the litigation results from alleged injuries that "arise out of or relate to" those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall.'\ . . . Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contracts there when policy consid- erations so require,"" the Court has consistently held that this kind of foresee- ability is not a "sufficient benchmark" for exercising personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson. Instead, "the foreseeability that is critical to due process analysis ... is that the defendant's conduct and connec- tion with the forum State are such that he should reasonably anticipate being haled into court there." Id. In defining when it is that a potential defendant should "reasonably anticipate" out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla: The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting acti\ ities within the forum State, thus invoking the benefits and protections of its laws. . . . B (1) Applying these principles to the case at hand, we believe there is substantial record evidence supporting the District Court's conclusion that the assertion of 14. We have noted that, because the personal jurisdiction requirement is a waivable right, there are a "variety of legal arrangements" by which a litigant may give "express or implied consent to the personal junsdiction of the court." Insurance Corp. of Ireland, v, Compagnie des Bauxites de Guinee, supra, (this supplement at 345]. For example, particularly m the commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particu- lar iurisdiction. Sec National Equipment Rental, Ltd v. Szukhent. Where such forum-selection provisions ha\c been obtained through "freely negotiated" agreements and arc not "unreasonable and unjust," The Bremen v. Zapata Off-Shore Co., their enforcement does not offend due process. 15. "Specific" jurisdiction contrasts with "general" jurisdiction, pursuant to which "a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum," Helicopteros Nacionales de Colombia, S.'K \ Hall, |this supplement infra at 336|. 16. See, e.g., World-Wide Volkswagen Corp. v. Woodson, (1980) (Brennan. J., dissenting); Shaffer v. Heitner, (Brennan, J., concurring in part and dis.senting in part). 330 lurisdiction Page 100 personal jurisdiction o\er Rudzewicz in Florida for the alleged breach of his franchise agreement did not offend due process. At the outset, we note a continued division among lower courts respecting whether and to what extent a contract can constitute a "contact" for purposes of due process analysis. If the question is w hether an indi\ idual's contract w ith an out-of-state part\ alone can automahcally establish sufficient minimum contacts in the other part) 's home forum, we belie\e the answer clearly is that it cannot. . . . [A] "contract" is "ordinarily but an intermediate step ser\ ing to tie up prior business negotiations with future consequences which themseKes are the real object of the business transaction." [Hoopeston Canning Co. v. Cullen.] It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing — that must be e\aluated in determining whether the defendant purposefulK established minimum con- tacts within the forum. In this case, no phxsical hes to Florida can be attributed to Rudzewicz other than MacShara's brief training course in Nhami. Rudzewicz did not maintain offices in Florida and, for all that appears from the record, has never e\en visited there, "^'et this franchise dispute grew directly out of "a contract which had a substantial connection with that State." McGee v. International Life Insurance Co. Eschew ing the option of operating an independent local enter- prise, Rudzewicz deliberately "reach[ed] out beyond" Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and the manifold benefits that would derne from affiliation with a nahonw ide organiza- tion. Tra\elers Health Assn. \-. \'irginia. Upon approval, he entered into a carefully structured 20-year relationship that envisioned continuing and wide- reaching contact with Burger King in Florida. In light of Rudzewicz's \oluntar\ acceptance of the long-term and exacting regulation of his business from Burger King's Miami headquarters, the "quality and nature" of his relationship to the company in Florida can in no sense be viewed as "random," "fortu- itous," or "attenuated." Hanson \. Denckla. . . . Rudzewicz most certainly knew that he was affiliating himself with an enterprise based primarily in Florida. The contract documents themselves emphasize that Burger King's operations are conducted and supervised from the Miami headquarters, that all relevant notices and payments must be sent there, and that the agreements were made in and enforced from Miami. Moreover, the parties" actual course of dealing repeatedh' confirmed that decisionmaking authority was vested in the Miami headquarters and that the district office served largely as an intermediate link between the headquarters and the franchisees. NN'hen problems arose o\er building design, site-development fees, rent computation, and the defaulted payments, Rudzewicz and MacShara learned that the Michigan office was powerless to resolve their disputes and could only channel their communica- tions to Miami. . . . Moreover, we believe the Court of .Appeals gave insufficient weight to provi- sions in the various franchise documents providing that all disputes would be governed by Florida law. The franchise agreement, for example, stated: 331 Page 100 Jurisdiction Tliis Agreement shall become \alid when executed and accepted b\ BKC at Miami, Florida; it shall be deemed made and entered into in the State of Florida and shall be governed and construed under and in accordance with the laws of the State of Florida. The choice of law designation does not require that all suits concerning this Agreement be filed in Florida. ... As Judge Johnson argued in his dissent below, Rudzewicz "puq^osefully availed himself of the benefits and protections of Florida's laws " by entering into contracts expressly providing that those laws would go\ern franchise disputes.^''. . . The Court of Appeals . . . concluded, however, that the parties dealings involved "a characteristic disparity of bargaining power" and "elements of sur- prise," and that Rudzewicz "lacked fair notice" of the potential for litigation in Florida because the contractual provisions suggesting to the contrar\' were merely "boilerplate declarations in a lengthy printed contract." Rudzewicz presented many of these arguments to the District Court, contending that Burger King was guilty of misrepresentation, fraud, and duress; that it gave insufficient notice in its dealings with him; and that the contract was one of adhesion. After a 3-day bench trial, the District Court found that Burger King had made no misrepresentations, that Rudzewicz and MacShara "were and are experienced and sophisticated businessmen," and that "at no time" did they "ac[t] under economic duress or disad\antage imposed by" Burger King. Fed- eral Rule of Civil Procedure 52(a) requires that "[f]indings of fact shall not be set aside unless clearly erroneous," and neither Rudzewicz nor the Court of Appeals have pointed to record evidence that would support a "definite and firm conviction" that the District Court's findings are mistaken. . . . m Notwithstanding these considerations, the Court of Appeals apparently be- lieved that it was necessary to reject jurisdiction in this case as a prophylactic measure, reasoning that an affirmance of the District Court's judgment would result in the exercise of jurisdiction over "out-of-state consumers to collect payments due on modest personal purchases" and would "sow the seeds of default judgments against franchisees owing smaller debts. " We share the Court of Appeals' broader concerns and therefore reject any talismanic jurisdic- tional formulas; "the facts of each case must [alwa\s) be weighed" in determin- ing whether personal jurisdiction would comport with "fair play and substantial justice." Kulko v. California Superior Court. . . . We also have emphasized that jurisdiction may not be grounded on a contract whose terms have been obtained through "fraud, undue influence, or overweening bargaining power" and whose application would render litigation "so gravely difficult and inconve- 2-1. In addition, the franchise agreement's disclaimer that the "choice of law designation does not require that all suits concerning this Agreement be filed in Florida." (emphasis added), reasona- bl\ should have suggested to Rudzewicz that by negative implication such suits could be filed there. 332 Jurisdiction Page 100 nient that [a part)] will for all practical purposes be deprived of his day in court. " The Bremen v. Zapata Off-Shore Co. Cf Fuentes v. Shevin; National Equipment Rental, Ltd. v. Szukhent, (1964) (Black, )., dissenting) (jurisdic- tional rules may not be employed against small consumers so as to "crippl[e] their defense"). Just as the Due Process Clause allows flexibility in ensuring that commercial actors are not effectively "judgment proof for the conse- quences of obligations they voluntarily assume in other States, McGee v. International Life Insurance Co., so too does it prevent rules that would un- fairly enable them to obtain default judgments against unwitting customers. For the reasons set forth above, however, these dangers are not present in the instant case. Because Rudzewicz established a substantial and continuing rela- tionship with Burger King's Miami headquarters, recei\ed fair notice from the contract documents and the course of dealing that he might be subject to suit in Florida, and has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair, we conclude that the District Court's exer- cise of jurisdiction pursuant to Florida Stat. \148. 193(1 )(g) (Supp. 1984) did not offend due process. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. Justice Powell took no part in the consideration or decision of this case. Justice Stevens, with whom Justice White joins, dissenting. In my opinion there is a significant element of unfairness in requiring a franchisee to defend a case of this kind in the forum chosen by the franchisor. It is undisputed that respondent maintained no place of business in Florida, that he had no employees in that State, and that he was not licensed to do business there. Respondent did not prepare his french fries, shakes, and ham- burgers in Michigan, and then deli\er them into the stream of commerce "with the expectation that they [would] be purchased by consumers in" Florida. To the contrary, respondent did business only in Michigan, his business, property, and payroll taxes were payable in that state, and he sold all of his products there. Throughout the business relationship, respondent's principal contacts with petitioner were with its Michigan office. Notwithstanding its disclaimer, the Court seems ultimately to rely on nothing more than standard boilerplate language contained in various documents, to establish that respondent " 'pur- posefully availed himself of the benefits and protections of Florida's laws.' " Such superficial analysis creates a potential for unfairness not only in negotia- tions betueen franchisors and their franchisees but, more significantly, in the resolution of the disputes that inevitably arise from time to time in such relationships. Judge Vance's opinion for the Court of Appeals for the Ele\enth Circuit adequately explains why I would affirm the judgment of that court. I particu- larly find the following more persuasive than what this Court has written today: 33? Page 100 Jurisdiction Nothing in the course of negotiations gave Rudzewicz reason to anticipate a Burger King suit outside of Michigan. The only face-to-face or even oral contact Rudzewicz had with Burger King throughout months of protracted negotiations was with representatives of the Michigan office. . . . Just as Rudzewicz lacked notice of the possibilit)' of suit in Florida, he was financially unprepared to meet its added costs. The franchise relationship in particular is fraught with potential for financial surprise. The device of the fran- chise gives local retailers the access to national trademark recognition which enable them to compete with better-financed, more efficient chain stores. This national affiliation, however, does not alter the fact that the typical franchise store is a local concern serving at best a neighborhood or community. Neither the revenues of a local business nor the geographical range of its market prepares the average franchise owner for the cost of distant litigation. . . . The particular distribution of bargaining power in the franchise relationship further impairs the franchisee's financial preparedness. In a franchise contract, 'the franchisor normally occupies [the] dominant role.'. . . We discern a characteristic disparity of bargaining power in the facts of this case. There is no indication that Rudzewicz had any latitude to negotiate a reduced rent or franchise fee in exchange for the added risk of suit in Florida. He signed a standard form contract whose terms were non-negotiable and which appeared in some respects to vary from the more favorable terms agreed to in earlier discussions. In fact, the final contract required a minimum monthly rent computed on a base far in excess of that discussed in oral negotiations. Burger King resisted price concessions, only to sue Rudzewicz far from home. In doing so, it severely impaired his ability to call Michigan witnesses who might be essential to his defense and counterclaim. In sum, we hold that the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida, jurisdic- tion under these circumstances would offend the fundamental fairness which is the touchstone of due process. Accordingly, I respectfully dissent. NOTES AND PROBLEMS 1. As a first step, can you distinguish Burger King from World-Wide Volks- wagen? Why is the local automobile dealer not subject to jurisdiction in Okla- homa, while the local hamburger dealer is subject to jurisdiction in Florida? 2. Consider the following proposition: Burger King and World-Wide Volkswagen combine to create an odd result. The owner of a hamburger stand by a freeway exit ramp is susceptible to suit by the franchisor at the franchisor's headquarters, but not susceptible to suit by a customer in the next state who has become sick after eating spoiled food sold by the stand. Unless the court has just changed its course (and one notes that justice Brennan, who dissented in World-Wide Volkswagen, wrote the opinion in Burger King), the justification has to lie in the difference between the two contracts — 334 Jurisdiction Page 100 one betueen the manufacturer and the dealer and the other beh\een the dealer and the customer. That difference is essentially the difference between a rental contract and a sale contract, behveen a continuing commercial relationship and a one-shot deal. In the former, the dealer is essentially renting customer identifica- tion (in the form of a trademark, and the standardized operations that will create predictable food) from the franchisor, and the continuing "landlord-tenant" rela- tionship makes it fair (or at least not wildly unfair) for the franchisor-landlord to sue the franchisee-tenant at the landlord's location. In the latter, the dealer contemplates no continuing relation with the fee simple purchaser of the ham- burger, who must therefore sue in the dealer's home forum. Is that analysis helpful? 3. Automobile dealers, who -also operate under franchises, have persuaded Congress to enact 15 U.S.C. SS1221 et seq., which provide, among other things, that a dealer aggrieved about its franchise may bring suit against the manufacturer "in any district ... in which . . . [the] manufacturer resides, or is found, or has an agent". 15 U.S.C. SI 222. Because the manufacturer will generally be "found ' in any district in which it delivers cars to a dealer, the result of the statute is to enable the dealer to sue the manufacturer on home turf. After Burger King can the auto manufacturers obviate this advantage by striking first, suing at their headquarters rather than waiting for the dealers to sue them? 4. The contract signed by Rudzewicz contained a clause specifying that Florida law would govern any disputes, but it did not contain a clause by which Rudzewicz consented to be sued in Florida. As you will see in part 4 of this sechon (Party Agreements Concerning Jurisdiction, casebook p. 122), such agreements are common and will under many circumstances be enforced by the courts. If that's true, should Burger King be congratulating its lawyers for having won a Supreme Court victory, or berating them for ha\ing made it necessary to engage in such an expensive fight in the first place, when a simple "forum selection" clause in the contract would have avoided it? 5. Towards the end of the opinion the majority responds to the Court of Appeals's concern that a victory for Burger King would "result in the exercise of jurisdiction over 'out-of-state consumers to collect payments due on modest personal purchases.' " The majority indicates that its holding does not stretch that far, but leaves it unclear why not. Moreover, even if one takes the Court at its word, it is hard to tell whether the key word in the quoted phrase is "consumer" or "modest." An example may make the choice important. Out- of-state financial institutions are beginning to enter previously local mortgage markets. Picture a California homeowner who had arranged — entirely by mail — financing with a lender in New Jersey (whose rate were lower than local banks, in part because it did not need to rent high-priced office space). The expected duration of the loan contract might be more than that of the Burger King franchise, and the amount in question almost as much. Under those circumstances could the homeowner \\ho failed to make a payment be sued in New Jersey? 335 Page 118 )urisdiction 3. General In Personam |urisdiction Page 118. Delete Bryanf v. Fini^ish I^ational Airline. Substitute: Helicopteros Nacionales de Colombia, S.A. v. Hall 104 S. Ct. 1868(1984) Justice Blackmun delivered the opinion of the Court. We granted certiorari in this case, to decide whether the Supreme Court of Texas correctly ruled that the contacts of a foreign corporation with the State of Texas were sufficient to allow a Texas state court to assert jurisdiction over the corporation in a cause of action not arising out of or related to the corporation's activities within the State. I Petitioner Helicopteros Nacionales de Colombia, S.A., (Helicol) is a Colom- bian corporation with its principal place of business in the cit\' of Bogota in that country. It is engaged in the business of providing helicopter transportation for oil and construction companies in South America. On January 26, 1976, a helicopter owned b\' Helicol crashed in Peru. Four United States citizens were among those who lost their lives in the accident. Respondents are the sur\i\ors and representatives of the four decedents. At the time of the crash, respondents' decedents were employed b>' Consor- cio, a Peruvian consortium, and were working on a pipeline in Peru. Consor- cio is the alter-ego of a joint venture named Williams-Sedco-Horn (WSH). The venture had its headquarters in Houston, Tex. Consorcio had been farmed to enable the venturers to enter into a contract with Petro Peru, the Peruvian state-owned oil company. Consorcio was to construct a pipeline for Petro Peru running from the interior of Peru west%vard to the Pacific Ocean. Peruv ian law forbade construction of the pipeline by any non-Peruvian entitv'. ConsorcioAV'SH needed helicopters to move personnel, materials, and equipment into and out of the construction area. In 1974, upon request of Consorcio/WSH, the chief executive officer of Helicol, Francisco Restrepo, flew to the United States and conferred in Houston with representatives of the three joint venturers. At that meeting, there was a discussion of prices, avail- abilitv, working conditions, fuel, supplies, and housing. Restrepo represented that Helicol could have the first helicopter on the job in 1 5 davs. The Consor- cio/WSH representatives decided to accept the contract proposed by Restrepo. Helicol began performing before the agreement was formallv signed in Peru on November 11, 1974." The contract was written in Spanish on official govern- ment stationery and provided that the residence of all the parties would be 5. Rebpoiidcnts acknowicdgf th;it the contract was cxccutc-d in Pern and not in tlic United States. 336 F^118 Lima, Pern. It tuiffaer stated that contitnasies arising out of the cxmttact vixiuld be submitted to the iuiisdiction of Peimian comts. In addition, it provided that CbnscMcioAX SH nxMild make payments to Helicd's accomit «itfa the Bank of Ameiica in New Yoik Cit> . .\side ftom the negotiation session in Houston between Restuqm and the lepiesentatives of ConsmcioAV'SH. Helicd had other contacts with Texas. Dming the \Teai5 1970— 1*977. it puichased helicopteis approxintately SCi per- cent of its j9eet . spaie parts, and accessories tor more than S4.000.000 hom Bell HeUcopter Company in Fort Worth. In that period. Helicol sent prospec- tiwe pilots to Fort Worth for tiainins and to fern- the aiiciaft to South .America. It also sent manaeement and maintenance personnel to \isit Bell Helicopter m Fort Worth during the same period in order to recei\e 'plant tamiliarization~ and for technica] consultation. Hdicol received into its INew Yoik City and Panama Cit>-. Fla.. bank accounts ovier 53.000,000 in payments bran Consor- cio>\\~SH diawT) upon First Cit>- National Bank of Housfam. Beyond the fbregoin^ there ha\^ been no other business contacts bet««en HdictJ and the State of Texas. Helicoi ne%^er has been authorized to do business in Texas and neicr has had an agent tor the service of process nitfain die State. It neicr has peitonned helicopler operations in Texas or sold arn- product that reached Texas. ne\ier sdicited business in Texas. ne\ier signed any contract in Texas. ne\^er had arn>- empkn^ee based there. aiKi ne\^er leciuited an empkn^ee in Tesas. In addition. Helicol nei^er has owned real or personal pn^iert> in Texas arxl never has maintained an office or establishment there. Helicol has maintained no records in Texas and has no shaiehokkis in that State. None of the respondents or then decedents w^ere domiciled in Texas,' but all of the decedents vt^ere hired in Houston b\' Consorcio/W SH to woA. on the Petro Peru pipeline protect. Respondents instrtuted wronghd death actions in the District Court of Harris Count}. Tex., against ConsoicioW SH. Bell Hdicopter Company, and Heli- col. Hdicol filed special appearances and moved to dismivs the actions for lack of in personam iurisdiction m^er it The motion «:3S denied. .Aiter a corvsoli- dated jjurv trial, judgment n^as entered against HeliccJ on a iury verdict of SI. 141. 200 in fevor of respondents. The Texas Court of Civil Appeals. Houston. First District, reiiersed the l|u(%roent of the District Court holding that in personam iurisdiction over Hdicd was lacking. The Supreme Court of Texas, nith three Justices dissent- ing, initialh- affirmed the judgment of the Court of Civil .Appeals. Seven iTMMitfas later, howevier. on motion for rehearing, the court withdrew- its prior opinions and. again «ith three {ustices dissenting, reversed the judgment of the 7 RespandEnb' tart rfmp^iili i Jul «i»-riiti«^ni«*^rtt»irti Teas ot'ilseil does ootikiEatatlKimise puper jJDiB&iian. Kieeiaa v. Hasder Nfa^xzine. Inc.: C^ikkir i. koei. We nKnbaa i£S>ocii£ir>3' bci cC dcmltacts meielv to isiimr liat nodmig in tlie natme at Ifae wfalwwirdup betmeen lespoadenfc jsid Helical cooU possiUjr '•"t'J™^ HetknTs coniacti wHlii Texzi. Tlie Ibiid sottEiEii br respoo- (knbM ool occnr in Teaas. Nn is it aDe^ed dot anr ne^igesiice <» Jbe |Uat of Hdicai took pbce ai Tecs^ 337 Page 118 Jurisdiction intermediate eoiirt. In ruling that the Texas courts had in personam jurisdic- tion, the I'exas Supreme Court first held that the State's long-arm statute reaches as far as the Due Process Clause of the Fourteenth Amendment per- mits. Thus, the onK question remaining for the court to decide was whether it was consistent with the Due Process Clause for Texas courts to assert in perso- nam jurisdiction over Helicol. II The Due Process Clause of the Fourteenth Amendment operates to limit the power of a State to assert in personam jurisdiction over a nonresident defen- dant. Pennoyer v. Neff, 95 U.S. 714 (1877). Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has "certain minimum contacts with [the forum] such that the maintenance of the suit, does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. \. Washington. When a contro- versy is related to or "arises out of ' a defendant's contacts with the forum, the Court has said that a "relationship among the defendant, the forum, and the litigation" is the essential foundation of in personam jurisdiction.^ Even when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, '' due process is not offended b\ a State's subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation. Perkins \\ Benguet Consolidated Mining Co., 342 U.S. 437 (1952); see Keeton v. Hustler Magazine, Inc. In Perkins, the Court addressed a situation in which state courts had asserted general jurisdiction over a defendant foreign corporation. During the Japanese occupation of the Philippine Islands, the president and general manager of a Philippine mining corporation maintained an office in Ohio from which he conducted acti\'ities on behalf of the company. He kept company files and held directors' meetings in the office, carried on correspon- dence relating to the business, distributed salary checks drawn on two active Ohio bank accounts, engaged an Ohio bank to act as transfer agent, and supervised policies dealing with the rehabilitation of the corporation's properties in the Philippines. In short, the foreign corporation, through its president, "ha[d] been carrying on in Ohio a continuous and ssstematic, but limited, part of its general business," and the exercise of general jurisdiction over the Philip- pine corporation by an Ohio court was "reasonable and just. " 8. It has been said that when a State exercises personal iurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the State is exercising "specific jurisdiction" over the defendant. See von Mchrcn & Trautman. jurisdiction to Adjudicate: A Suggested Analysis, 79 Har\. L, Rev. 1156. ! 144-1 164 (1%6|. 9. When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising "general jurisdiction " over the defendant. See Brilmaver, How Contacts Count: Due Process Limitations on State Court Iurisdiction. 1980 S. Ct. Rev. V'?, 80-81: von Mehrcn & rrautman. 79 Harv. L. Rev., at ir^6-1144 338 Jurisdiction Page 118 All parties to the present case concede that respondents' claims against Heli- col did not "arise out of and are not related to, Helicol's activities within Texas. '" We thus must explore the nature of Helicol's contacts with the State of Texas to determine whether the> constitute the kind of continuous and sys- tematic general business contacts the Court found to exist in Perkins. We hold that they do not. It is undisputed that Helicol does not ha\e a place of business in Texas and never has been licensed to do business in the State. Basicalh'. Helicol's contacts with Texas consisted of sending its chief executi\e officer to Houston for a contract-negotiation session: accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training ser\ices from Bell Helicopter for substantial sums; and sending personnel to Bell's facilities in Fort \\ orth for training. The one trip to Houston by Helicol's chief executive officer for the purpose of negotiating the transportation-senices contract with ConsorcioA\'SH cannot be described or regarded as a contact of a "continuous and s\ stematic' nature, as Perkins described it, and thus cannot support an assertion of in jjersonam jurisdiction over Helicol by a Texas court. Similarly, Helicol's acceptance from ConsorcioA\'SH of checks drawn on a Texas bank is of negligible significance for purposes of determining whether Helicol had sufficient contacts in Texas. There is no indication that Helicol e\er requested that the checks be drawn on a Texas bank or that there was any negotiation between Helicol and Consorcio/ WSH with respect to the location or identit>- of the bank on which checks would be drawn. Common sense and everyday experience suggest that, absent unusual circumstances, the bank on which a check is drawn is generally of little consequence to the payee and is a matter left to the discretion of the drawer. Such unilateral activit\- of another party or a third person is not an appropriate consideration when determining whether a defendant has sufficient contacts with a forum State to justif\' an assertion of jurisdiction. See Kulko \ . 10. Because the parties have not argued anv- relationship between the cause of action and \'^\jt(ll<^ -(i^lk Hehcol's contacts with the State of Texas, we, contian. to the dissent's implication, assert no/ •Si'^InC-" ^^/> "view" with respect to that issue. I li/ii <^' The dissent suggests that we have erred in drawing no distinction between contro\ersies that "relate to " a defendant's contacts v*ith a forum and those that "arise out of " such contacts. This criticism is somev.hat puzzling, for the dissent goes on to urge that, for purposes of determining the constitutional validitv' of an assertion of specific jurisdiction, there really should be no distinction behveen the two. We do not address the validitv or consequences of such a distinction because the issue has not been presented in this case. Respondents have made no argument that their cause of action either arose out of or is related to Helicol s contacts with the State of Texas. .-Kbsent an> briefing on the issue, we decline to reach the questions ( 1 1 whether the terms "arising out of and "related to" describe different connections between a cause of action and a defendant's contacts with a forum, and 1 2) what sort of tie between a cause of action and a defendant's contacts with a forum is necessarv to a determination that either connection exists. Nor do «e reach the question whether, if the t\»o tvpes of relationship differ, a forum's exercise of personal jurisdiction in a situation w here the cause of action "relates to," but does not "arise out of," the defendant's contacts with the forum should be analyzed as an assertion of specific jurisdiction. 339 J^^oJU^ Page 1 1 8 lurisdiction California Superior Court (arbitrars to subject one parent to suit in any State where other parent chooses to spend time while ha\ing custody of child pursu- ant to separation agreement); Hanson v. Denckla ("The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State"); see also LilK , Jurisdiction Over Domestic and Alien Defendants, 69 Va. L. Rev. 85, 99 (1983). The Texas Supreme Court focused on the purchases and the related training trips in finding contacts sufficient to support an assertion of jurisdiction. We do not agree with that assessment, for the Court's opinion in Rosenberg Bros. & Co. V. Curtis Brown Co., 260 U.S. 516 (1923) (Brandeis, )., for a unanimous tribunal), makes clear that purchases and related trips, standing alone, are not a sufficient basis for a State's assertion of jurisdiction. The defendant in Rosenberg was a small retailer in Tulsa, Okla., who dealt in men's clothing and furnishings. It never had applied for a license to do business in New York, nor had it at any time authorized suit to be brought against it there. It never had an established place of business in New York and never regularly carried on business in that State. Its only connection with New York was that it purchased from New York wholesalers a large portion of the merchandise sold in its Tulsa store. The purchases sometimes were made by correspondence and sometimes through visits to New York by an officer of the defendant. The Court concluded: "Visits on such business, even if occurring at regular intervals, would not warrant the inference that the corporation was present within the jurisdiction of [New York]." This Court in International Shoe acknowledged and did not repudiate its holding in Rosenberg. In accordance with Rosenberg, we hold that mere pur- chases, even if occurring at regular intervals, are not enough to warrant a State's assertion of in personam jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.'' Nor can we con- clude that the fact that Helicol sent personnel into Texas for training in con- nection with the purchase of helicopters and equipment in that State in any way enhanced the nature of Helicol's contacts with Texas. The training was a part of the package of goods and services purchased bv' Helicol from Bell Helicopter. The brief presence of Helicol employees in Texas for the purpose of attending the training sessions is no more a significant contact than were the trips to New York made by the buyer for the retail store in Rosenberg. See also Kulko V. California Superior Court, 436 U.S., at 93 (basing California juris- diction on 3-day and I -day stopovers in that State "would make a mockery of" due process limitations on assertion of personal jurisdiction). 12, This Court m InU'rnatwnal Shoe cited Rosenberg for the proposition tliat "the eonimisMoii of some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liabilit)' on the corporation has not been thought to confer upon the state authoritv to enforce it. " ^26 U.S.. at 318. Arguably, therefore. Rosenberg also .stands for the proposition that mere purchases are not a sufficient basis for cither general or specific jurisdiction. Because the case before us is one in which there has been an assertion of general jurisdiction over a foreign defendant, we need not decide the continuing validitv- o( Rosenberg with respect to an assertion of specific jurisdiction, i.e.. where the cause of action arises out of or relates to the purchases by the defendant in the forimi State. 340 Jurisdiction Page 118 m We hold that Helicol's contacts with the State of Texas were insufficient to satisf)' the requirements of the Due Process Clause of the Fourteenth Amend- ment.'' Accordingly, we reverse the judgment of the Supreme Court of Texas. Justice Brennan, dissenting. Decisions applying the Due Process Clause of the Fourteenth Amendment to determine whether a State may constitutionally assert in personam jurisdiction over a particular defendant for a particular cause of action most often turn on a weighing of facts. See, e.g., Kulko \. California Superior Court, 436 U.S. 84, 92 (1978); id., at 101-102 (Brennan, )., dissenting). To a large extent, today's decision follows the usual pattern. Based on essentially undisputed facts, the Court concludes that petitioner Helicol's contacts with the State of Texas were insufficient to allow the Texas state courts constitutionally to assert "general jurisdiction" over all claims filed against this foreign corporation. .-Mthough my independent weighing of the facts leads me to a different conclusion, the Court's holding on this issue is neither implausible nor unexpected. What is troubling about the Court's opinion, however, are the implications that might be drawn from the way in which the Court approaches the constitu- tional issue it addresses. First, the Court limits its discussion to an assertion of general jurisdiction of the Texas courts because, in its view, the underlying cause of action does "not aris[e] out of or relat[e] to the corporation's activities within the State." Then, the Court relies on a 1923 decision in Rosenberg Bros. & Co. \. Curtis Brown Co., without considering whether that case retains any \alidit)' after our more recent pronouncements concerning the permissible reach of a State's jurisdiction. By posing and deciding the question presented in this manner, I fear that the Court is saying more than it realizes about constitutional limitations on the potential reach of in personam jurisdic- tion. In particular, b\' relying on a precedent v\hose premises have long been discarded, and by refusing to consider an\' distinction between controversies that "relate to" a defendant's contacts with the forum and causes of action that "arise out of" such contacts, the Court may be placing se\ere limitations on the type and amount of contacts that will satisfs' the constitutional minimum. In contrast, I believe that the undisputed contacts in this case between peti- tioner Helicol and the State of Texas are sufficiently important, and sufficiently related to the underlying cause of action, to make it fair and reasonable for the State to assert personal jurisdiction over Helicol for the v\rongful death actions filed by the respondents. Given that Helicol has purposefully availed itself of the n, .\s an alternative to traditional minimum-contacts analysis, respondents suggest that the Court hold that the State of Texas had personal jurisdiction over Helicol under a doctrine of "jurisdiction by necessity. " See Shaffer v. Heitner, |casebook. p. n5|. We conclude, howeier, that respondents failed to carry their burden of showing that all three defendants could not be sued together in a single forum It is not clear from the record, for example, whether suit could have been brought agamst all three defendants m either Colombia or Peru. We decline to consider adoption of a doctrine of jurisdiction by necessity — a potentially far-reaching modification of existing law — m the absence of a more complete record. 341 Page 118 Jurisdiction benefits and obligations of the forum, and given the direct relationship between the underlying cause of action and Helicol's contacts with the forum, mainte- nance of this suit in the Texas courts "does not offend [the] 'traditional notions of fair play and substantial justice,' " that are the touchstone of jurisdictional analy- sis under the Due Process Clause. I therefore dissent. I [Justice Brennan went on to elaborate on his contentions tiiat both general and specific jurisdiction existed. In support of the first proposition he con- tended that Rosenberg, decided in 1923, was no longer good law;] The vast expansion of our national economy during the past se\eral decades has provided the primary rationale for expanding the permissible reach of a State's jurisdiction under the Due Process Clause. By broadening the type and amount of business opportunities available to participants in interstate and foreign commerce, our economy has increased the frequency with which for- eign corporations actively pursue commercial transactions throughout the vari- ous States. In turn, it has become both necessary and, in my view, desirable to allow the States more leeway in bringing the activities of these nonresident corporations within the scope of their respective jurisdictions. . . . As a foreign corporation that has actively and purposefully engaged in numerous and frequent commercial transactions in the State of Texas, Heli- col clearly falls within the category of nonresident defendants that may be subject to that forum's general jurisdiction. Helicol not only purchased heli- copters and other equipment in the State for many years, but also sent pilots and management personnel into Texas to be trained in the use of this equip- ment and to consult with the seller on technical matters. Moreover, negotia- tions for the contract under which Helicol provided transportation services to the joint venture that employed the respondents' decedents also took place in the State of Texas. Taken together, these contacts demonstrate that Helicol obtained numerous benefits from its transaction of business in Texas. In turn, it is eminently fair and reasonable to expect Helicol to face the obligations that attach to its participation in such commercial transactions. Accordingly, on the basis of continuous commercial contacts with the forum, I would conclude that the Due Process Clause allov\s the State of Texas to assert general jurisdiction o\er petitioner Helicol. n The Court also fails to distinguish the legal principles that controlled our prior decisions in Perkins and Rosenberg. In particular, the contacts between petitioner Helicol and the State of Texas, unlike the contacts between the defendant and the forum in each of those cases, arc significanth' related to the cause of action alleged in the original suit filed by the respondents. Accord- 342 Jurisdiction Page 118 ingly, in mv view, it is both fair and reasonable for the Texas courts to assert specific jurisdiction over Helicol in this case. By asserting that the present case does not imphcate the specific jurisdiction of the Texas courts, the Court necessarily removes its decision from the reality of the actual facts presented for our consideration.' Moreover, the Court re- fuses to consider any distinction between contacts that are "related to" the underlying cause of action and contacts that "give rise" to the underlying cause of action. In my view, however, there is a substantial difference between these two standards for asserting specific jurisdiction. Thus, although I agree that the respondents' cause of action did not formally "arise out of" specific activities initiated by Helicol in the State of Texas, I believe that the wrongful death claim filed by the respondents is significantly related to the undisputed contacts between Helicol and the forum. On that basis, I would conclude that the Due Process Clause allows the Texas courts to assert specific jurisdiction over this particular action. The wrongful death action filed by the respondents was premised on a fatal helicopter crash that occurred in Peru. Helicol was joined as a defendant in the lawsuit because it provided transportation services, mcluding the particular helicopter and pilot involved in the crash, to the joint venture that employed the decedents. Specifically, the respondents claimed in their original complaint that "Helicol is . . . legally responsible for its own negligence through its pilot employee." Viewed in light of these allegations, the contacts between Helicol and the State of Texas are directly and significantly related to the underlying claim filed by the respondents, 'i'he negotiations that took place in Texas led to the contract in which Helicol agreed to provide the precise transportation services that were being used at the time of the crash. Moreover, the helicopter involved in the crash was purchased by Helicol in Texas, and the pilot whose negligence was alleged to have caused the crash was actually trained in Texas. This is simply not a case, therefore, in which a state court has asserted jurisdic- tion over a nonresident defendant on the basis of wholly unrelated contacts with the forum. Rather, the contacts between Helicol and the forum are directly related to the negligence that was alleged in the respondents' original complaint. Because Helicol should have expected to be amenable to suit in the Texas courts for claims directly related to these contacts, it is fair and reason- able to allow the assertion of jurisdiction in this case. . . . NOTES AND PROBLEMS 1. What are the differences between specific in personam jurisdiction and general in personam jurisdiction with respect to 3. Nor do I agree with the Court that the respondents have conceded that their claims are not related to Helicol's activities within the State of Texas. Although parts of their written and oral arguments before the Court proceed on the assumption that no such relationship exists, other portions suggest just the opposite. . . . 343 Page 1 1 8 Jurisdiction a. the quantity of contacts required, and b. the kind of contacts required? 2. One reading of this opinion is that it rests almost entirely on footnote 10 (noting the plaintiffs" failure to argue for specific jurisdiction), and that its holding is therefore of little significance except as another reminder to the student that lawyers' mistakes can be costly. Is that a fair reading, or on the basis of World-Wide Volkswagen would the Hall court have denied specific jurisdiction too? 3. The contacts in Hall were not enough for general in personam jurisdic- tion. How much more contact would have been necessary before it was enough to satisfy the test for general in personam jurisdiction? Does Hall do much more than reaffirm Perkins if it does not give more specific guidelines for determining when substantial contacts exist? Should general in personam juris- diction ordinarily be limited to the state of incorporation (when the defendant is a corporation) plus the state that is the defendant's chief place of business (or domicile, in the case of an individual)? 4. Apart from his criticism of the majority's reasoning, does Justice Bren- nan's jurisdictional reasoning boil down to anything more than that he thinks that the amount of contacts in this case were enough to make jurisdiction fair? 5. Please read notes 2 to 5 at pp. 121-122 of the casebook (following the Bryant case, now deleted). Page 122. Delete the heading, 4. Party Agreements Concerning jur- isdiction. Substitute: 4. Waiver a. Party Agreements Concerning Jurisdiction Page J24. Before 5. Transient Jurisdiction and Fraudulent Inducement into the Territory, add: b. Involuntary waiver Parties may lose their rights to insist on minimum contracts or other jurisdic- tional requirements not only by active consent, as discussed at pages 122-124 of the casebook, but also by principles that operate in spite of an intent to contest juri.sdiction. One such principle is discussed at pages 162-165 of the casebook under the section headed "Procedures for Challenging Jurisdiction." The basic message there is that there are indeed procedures for appropriately challenging 344 Jurisdiction Page 124 jurisdiction, and that failure to follow those procedures may result in the waiver of otherwise legitimate objections to a court's jurisdiction. Later in the casebook the general topic of discovery will be treated (Chapter VII). Discovery is the generic term for those devices that have been developed for gathering information about a case and preparing for trial, such as taking depositions of witnesses (including one's opponent) or requiring one's opponent to produce relevant documents. Discovery may be necessary to obtain informa- tion not only about the substantive aspects of a case, but about jurisidictional issues as well. When the court rules on the issue of jurisdiction before trial, as it ordinarily will, how does it obtain the facts on which to determine the existence of "minimum contacts"? The answer is usually through discovery engaged in by the parties. Although discovery usually proceeds without a great deal of court interven- tion, sometimes parties disagree on the appropriateness of discovery and must turn to the court for a ruling. If one of the parties disobeys the court's ruling, sanctions may be necessary. But what if a party resists discovery designed to ferret out the facts necessary to establish minimum contacts — and disobeys discovery orders on the grounds that minimum contacts are lacking, thereby depriving the court of any authority over that party? Can the court impose sanctions under such circumstances? In particular, can the court impose a sanction available under other circumstances — that of saying, in effect, that the facts that were the subject matter of the discovery will be presumed to be contrary to the interests of the party who disobeyed the order? In other words, can the court say to the party disobeying a discovery order (on the grounds that there is no authority for the order, because no minimum contacts) that mini- mum contacts will be presumed? That is the "conundrum" in the following case. Note that the case is important as more than a discovery case, however, since the answer to the conundrum says much about what jurisdiction is really all about. In particular, as you read the majority and concurring opinions, ask yourself if the Court's treatment of juris- diction in this "discovery case" is consistent with its treatment of underlying jurisdictional issues in the jurisdiction cases we have studied so far. Insurance Corporation of Ireland v. Compagnie de Bauxites de Guinee 456 U.S. 694(1982) Justice White delivered the opinion of the Court. Rule 37(b), Federal Rules of Civil Procedure, pro\ides that a District Court may impose sanctions for failure to comply with discovery orders. Included among the available sanctions is: An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the part)' obtaining the order. 345 Page 124 lurisdiction Rule 37(b)(2)(A). The question presented by this case is whether this rule is applicable to facts that form the basis for personal jurisdiction over a defendant. May a District Court, as a sanction for failure to comply with a discoxery order directed at establishing jurisdictional facts, proceed on the basis that personal jurisdiction over the recalcitrant party has been established? Petitioners urge that such an application of the Rule would violate Due Process: If a court does not have jurisdiction over a party, then it may not create that jurisdiction by judicial fiat. They contend also that until a court has jurisdiction over a party, that party need not comply with orders of the court; failure to comply, therefore, cannot provide the ground for a sanction. In our view, petitioners are attempting to create a logical conundrum out of a fairly straightforward matter. [Plaintiff/respondent Compagnie de Bauxites de Guinee (CBG) arranged to obtain various kinds of insurance, including "excess" insurance against busi- ness interruption. When such an interruption allegedly occurred and the insurers, including the excess insurers, refused to pay, CBG brought suit. The regular insurer did not contest jurisdiction, but the excess insurers, a group of foreign insurance companies, did. Plaintiff made certain requests for discovery in the action, which was brought in a Pennsylvania federal district court. The excess insurers refused to comply on the grounds that the requests were too burdensome. CBG sought an order to comply, which the district court granted. A series of further moves failed to produce the required material. Finally the district court warned the defendants that it would assume that there was jurisdiction, as a sanction pursuant to Rule 37, unless there was compliance. There was no compliance, and the court entered an order find- ing in personam jurisdiction.] II In McDonald v. Mabee, 243 U.S. 90 (1917), another case involving an alleged lack of personal jurisdiction, Ju,stice Holmes wrote for the Court, "great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact." Petitioners' basic submission is that to apply Rule 37(b)(2) to jurisdictional facts is to allow fiction to get the better of fact and that it is impermissible to use a fiction to establish judicial power, where, as a matter of fact, it does not exist. In our view, this represents a fundamental misunderstanding of the nature of personal jurisdiction. The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties. [The Court discussed the nature of subject matter jurisdiction, including its nonwaivabilit)' and the fact that it may be raised sua sponte by the court.) None of this is true with respect to personal jurisdiction, liic requirement that a court have personal jurisdiction flows not from Art. 11, but from the Due Process Clause. I'he personal jurisdiction requirement recognizes and protects an individual libert) interest. It represents a restriction on judicial power not as 346 Jurisdiction Page 124 a matter of so\ereignh-, but as a matter of iiidi\ idual libert> . '" Thus, the test for personal jurisdiction requires that "the maintenance of the suit . . . not offend "traditional notions of fair play and substantial justice.' " International Shoe v. Washington, quoting Milliken v. Meyers. Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. In McDonald v . Mabee, supra, the Court indicated that regardless of the power of the state to serve process, an individual may submit to the jurisdiction of the Court by appearance. A variety of legal arrangments have been taken to represent express or implied consent to the personal jurisdiction of the court. In National Rental \ . Szukhent, we stated that "parties to a contract may agree in advance to submit to the jurisdiction of a given court," and in Petrowski v. Hawkeye-Security Co., the Court upheld the personal jurisdiction of a district court on the basis of a stipulation entered into by the defendant. In addition, lower federal courts have found such consent implicit in agreements to arbitrate. Furthermore, the Court has upheld state procedures which find constructive consent to the personal jurisdiction of the state court in the voluntarv use of certain state procedures. Finally, unlike subject matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Fed. Rules Civ. Proc, "a defense of lack of jurisdiction over the person ... is waived" if not timeh raised in the answer or a responsive pleading. In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. These characteristics portray it for what it is — a legal right protecting the mdividual. The plaintiffs demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law — i.e., certain factual showings will have legal consequences — but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdic- tion of the court, v\ hether \ oluntary or not. The expression of legal rights is often subject to certain procedural rules: The failure to follow those rules may well result in a curtailment of the rights. Thus, the failure to enter a timely objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the objection. A sanction under Rule 10. It is true that we have stated that the requirement of personal |urisdiction, as applied to state courts, reflects an element of federalism and the character of state sovereignt>- vis-a-vis other states. . . . Contrar)' to the suggestion of Justice Powell, our holding today does not alter the requirement that there be "minimum contacts" between the nonresident defendant and the forum state. Rather, our holding deals with how the facts needed to sho« those "minimum contacts" can be established when a defendant fads to comply with court-ordered discoven. The restriction on state sovereign power described in World-Wide Volkswagen Corp., however, must be seen as ultimately a function of the individual liberty interest presened by the Due Process Clause. That clause is the only source of the personal jurisdiction requirement and the clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an indepen- dent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty . although the individual can subject himself to powers from which he may otherwise be protected. 347 Page 124 Jurisdiction 37(bX2)(A) consisting of a finding of personal jurisdiction has precisely the same effect. As a general proposition, the Rule 37 sanction applied to a finding of personal jurisdiction creates no more of a due process problem than the Rule 12 waiver. Although "a court cannot conclude all persons interested by its mere assertion of its own power," not all rules that establish legal consequences to a party's own behavior are "mere assertions" of power. Rule 37(b)(2)(a) itself embodies the standard established in Hammond Pack- ing Co. V. Arkansas, 212 U.S. 322 (1909), for the Due Process limits on such rules. There the Court held that it did not violate due process for a state court to strike the answer and render a default judgment against a defendant who failed to comply with a pretrial discovery order. Such a rule was permissible as an expression of the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression of failure to produce the proof ordered. . . . [T]he preservation of due process was secured by the presumption that the refusal to produce evidence material to the administra- tion of due process was but an admission of the want of merit in the asserted defense. The situation in Hammond was specifically distinguished from that in Hovey v. Elliott, 167 U.S. 409 (1897), in which the Court held that it did violate due process for a court to take similar action as "punishment" for failure to obey an order to pay into the registry of the court a certain sum of money. Due process is violated only if the behavior of the defendant will not support the Hammond Packing presumption. A proper application of Rule 37(b)(2) will, as a matter of law, support such a presumption. See Societe Internationale v. Rogers, 357 U.S. 197, 209-213 (1958). If there is no abuse of discretion in the application of the Rule 37 sanction, as we find to be the case here (see S'll). then the sanction is nothing more than the invocation of a legal presumption, or what is the same thing, the finding of a constructive waiver. Petitioners argue that a sanction consisting of a finding of personal jurisdic- tion differs from all other instances in which a sanction is imposed, including the default judgment in Hammond Packing, because a partv' need not obey the orders of a court until it is established that the court has personal jurisdiction over the party. If there is no obligation to obey a judicial order, a sanction cannot be applied for the failure to comply. Until the court has established personal jurisdiction, moreover, any assertion of judicial power over the party violates due process. This argument again assimies that there is something unique about the requirement of personal jurisdiction, which prevents it from being established or waived like other rights. A defendant is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding. By submitting to the jurisdic- tion of the court for the limited purpose of challenging jurisdiction, the defen- dant agrees to abide by that court's determination on the issue of jurisdiction: 348 Jurisdiction Page 124 That decision will be res judicata on that issue in any further proceedings. As demonstrated abo\e, the manner in which the court determines whether it has personal jurisdiction may include a \ariet> of legal rules and presumptions, as well as straightfon\ard fact-finding. A particular rule may offend the due pro- cess standard of Hammond Packing, but the mere use of procedural rules does not in itself violate the defendant's due process rights. [The Court concluded b)' finding that the sanction imposed by the district court was not an abuse of discretion under the facts of the case.] Justice Powell, concurring in the judgment. The Court rests today's decision on a constitutional distinction between "subject matter" and "in personam " jurisdiction. Under this distinchon, sub- ject matter jurisdiction defines an Article III limitation on the power of federal courts. B\ contrast, the Court characterizes the limits on in personam jurisdic- tion solely in terms of waivable personal rights and notions of "fair play." Having done so, it determines that fundamental questions of judicial power do not arise in this case concerning the personal jurisdiction of a federal district court. In my view the Court's broadly theoretical decision misapprehends the issues actuallv presented for decision. Federal courts are courts of limited jurisdiction. Their personal jurisdiction, no less than their subject matter jurisdiction, is subject both to constitutional and to statutory definition. When the applicable limitations on federal jurisdiction arc identified, it becomes apparent that the Court's theory could require a sweeping but largely unexplicated re\ision of jurisdictional doctrine. This revision could encompass not only the personal jurisdiction of federal courts but "sovereign " limitations on state jurisdiction as identified in World-Wide \'olkswagen Corp. v. Woodson. Fair resolution of this case does not require the Court's broad holding. Accordingly, although I concur in the Court's judgment, I cannot join its opinion. Under traditional principles, the due process question in this case is uhether "minimum contacts " exist between petitioners and the forum State that would justif\' the State in exercising personal jurisdiction. By finding that the estab- lishment of minimum contacts is not a prerequisite to the exercise of jurisdic- tion to impose sanctions under Fed. Rule Ci\-. Proc. 37, the Court may be understood as finding that "minimum contacts" no longer is a constitutional requirement for the exercise by a state court of personal jurisdication o\er an unconsenting defendant. Whenever the Court's notions of fairness are not offended, jurisdiction apparently may be upheld. Before today, of course, our cases had linked minimum contacts and fair play as jointly defining the "sovereign" limits on state assertions of personal 349 Page 124 Jurisdiction jurisdiction o\er unconsenting defendants. See World-Wide Volkswagen Corp. V. Woodson, Hansen v. Deckla. The Court appears to abandon the rationale of these cases in a footnote. See n.lO. But it does not address the implications of its action. By eschewing reliance on the concept of minimum contacts as a "sovereign" limitation on the power of States — for, again, it is the State's long-arm statute that is invoked to obtain personal jurisdiction in the District Court — the Court today effects a potentially substantial change of law. For the first time it defines personal jurisdiction solely by reference to abstract notions of fair play. And, astonishingly to me, it does so in a case in which this rationale for decision was neither argued nor briefed b\ the parties. B Alternati\ eh . it is possible to read the Court opinion, not as affecting the state jurisdiction, but simply as asserting that Rule 37 of the Federal Rules of Civil Procedure represents a congressionally approved basis for the exercise ot personal jurisdiction by a federal district court. On this view Rule 57 vests the federal district courts with authorit)' to take jurisdiction o\cr persons not in compliance with discovery orders. This of course would be a more limited holding. ^ et the Court does not cast its decision in these terms. And it pro\ides no support for such an interpretation, either in the language or in the history of the Federal Rules. In the absence of such support, I could not join the Court in embracing such a construction of the Rules of Ci\il Procedure. There is nothing in Rule 57 to suggest that it is intended to confer a grant of personal juri.sdiction. Indeed, the clear language of Rule 82 seems to establish that Rule 37 should not be construed as a jurisdictional grant: "These rules shall not be construed to extend . . . the jurisdiction of the United States district courts or the \enue of actions therein." Moreover, assuming that minimum contacts remain a constitutional predicate for the exercise of a State's in personam jurisdiction over an unconsenting defendant, constitutional questions would arise if Rule 37 were read to permit a plaintiff in a diversity action to subject a defendant to a "fishing expedition" in a foreign jurisdiction. A plaintiff is not entitled to disco\ery to establish essentialK- specula- tive allegations necessary to personal jurisdiction. Nor would the use of Rule 37 sanctions to enforce discovery orders constitute a mere abuse of discretion in such a case. For me at least, such a use of discovery would raise serious questions as to the constitutionality as well as the statutor\' authority of a federal court — in a diversity case — to exercise personal jurisdiction absent some showing of mini- mum contacts between the unconsenting defendant and the forum State. In this case the facts alone — unaided by broad jurisdictional theories — more than amply demonstrate that the District Court possessed personal juris- 350 Jurisdiction Page 124 diction to impose sanctions under Rule 37 and otherwise to adjudicate this case. I would decide the case on this narrow basis. . . . NOTES AND PROBLEMS 1. The majority, as Justice Powell notes, does not seem to base its decision purely on a sanction rationale: Instead it invokes Hammand Packing Co. v. Arkansas for the proposition that a presumption that the facts giving rise to actual jurisdiction actually exist ma\ be drawn from the defendants' silence. Is such an inference credible? What if the defendants truly thought the requests for documents were excessively burdensome? 2. Could the result of the case be rested on a sanction rationale? Or is it improper to impose a sanction on a party over whom the court has no jurisdiction? 3. If the defendants had made no appearance at all, even to contest jurisdic- tion, the court might have entered a judgment against them, but it would have been subject to collateral attack — i.e., a second court, asked to enforce the judgment, would be required to inspect the jurisdictional contacts afresh and make its own judgment. In the actual case, however, collateral attack is pre- sumably not permitted. How can the Court justify worse treatment for the defendants who show up but don't cooperate fully, than for those who don't cooperate at all by failing to show up? 4. In the Keeton case, supra this supplement, the concurring opinion of Justice Brennan was omitted because it dealt with the implications of the Bauxites case. Justice Brennan's brief opinion said: I agree with the Court that "[rjespondent's regular circulation of magazines in the forum State is sufficient to support an assertion of jurisdiction in a libel action based on the contents of the magazine," These contacts between the respondent and the forum State are sufficiently important and sufficiently related to the underlying cause of action to foreclose any concern that the constitutional limits of the Due Process Clause are being violated. This is so, moreover, irrespective of the state's interest in enforcing its substantive libel laws or its unique statute of limitations. Indeed, as we recently explained in Insurance Corp v. Compagnic des Bauxites, these interests of the State should be relevant only to the extent that they bear upon the liberty interests of the respondent that are protected by the Fourteenth Amendment. "The restriction on state sovereign power described in World-Wide Volkswagen Corp. must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. " 5. Reminder: the waiver that results from failure to comply with the rules for pleading lack of jurisdiction is discussed at pages 162-165 of the casebook. 351 Page 173 Jurisdiction C. The Requirement of Notice Page 173: Two changes have occurred in Rule 4 since the Note on service of process was written. First, Rule 4(c){2)(c)(ii) now provides for service by way of ordinary' first-class mail, with an acknowledgement form attached to the summons and complaint. If the acknowledgement form (see form 18-A) is signed and returned by the defendant, service is complete. If it is not returned within 20 days of the date of mailing, service shall be made by the usual means. The incentive to the defendant to cooperate is provided by assessing the costs of such personal ser\'ice against the person who receives form 18-A and does not return it within 20 days. Second, Rule 4(j), which is new, now provides for automatic dismissal of the case if service is not accomplished within 120 days of filing the complaint, unless good cause is shown. D. Venue 1. Introductory Note Pages 176-179. In conjunction with the materials at pages 176-179, add the following case: Leroy v. Great Western United Corp. 443 U.S. 173 (1979) Justice Stevens delivered the opinion of the Court. An Idaho statute imposes restrictions on certain purchasers of stock in corpo- rations having substantial assets in Idaho. The questions presented by this appeal are whether the state agents responsible for enforcing the statute may be required to defend its constitutionality in a Federal District Court in Texas and, if so, whether the statute conflicts with the Williams Act amendments to the Securities Exchange Act of 1934, or with the Commerce Clause of the United States Constitution." Sunshine Mining and Metal Co. (Sunshine) is a "target company" within the meaning of the Idaho Corporate Takeover Act — a statute designed to regulate takeovers of corporations that have certain connections to the State.' Sunshine's 2. "The Congress shall ha\e Power . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. . . ' D.S Const.. Art. I, S8. 3. Chapter 15 of Title 3U of the Idaho Code is entitled "Corporate Takeovers. " Its opening provision contains the following definition: " 'Target company' means a corporation or other issuer of securities which is organized under the laws of this state or has its principal office in this state, which has substantial assets located in this stale, whose equit\' securities of any class are or have been registered under chapter 14, title 30, Idaho Code, or predecessor laws or section 12 of the Securities Exchange Act of 1934, and «hich is or mav be involved in a take-over offer relating to anv class of its equih securities." Idaho Code !i30-1501(6) (Supp. 1979) (emphasis added). 352 Jurisdiction Pages 176-179 principal business is a silver mining operation in the Coeur d'Alene Mining District in Idaho. Its executive offices and most of its assets are located in the State. Sunshine is also engaged in business m New York and, through a subsidiary, in Maryland. Its stock is traded over the New York Stock Exchange, and its share- holders are dispersed throughout the country. It is a Washington corporation. Great Western United Corp. (Great Western) is an "offeror" within the mean- ing of the Idaho statute. Great Western is a publicly owned Delaware corporation with executive headquarters in Dallas, Tex., and corporate offices in Denver, Colo. In early 1977, Great Western decided to make a public offer to purchase 2 million shares of Sunshine stock for a premium price. Because consummation of the proposed tender offer would cause Great Western to own more than 5% of Sunshine's outstanding shares. Great Western was required to comply with certain provisions of the Williams Act and arguably also tocomply with the Idaho Corpo- rate Takeover Act as well as with similar provisions of New York and Maryland. On March 21, 1977, Great Western publicly announced its intent to make a tender offer for 2 million shares of Sunshine, and its representatives took simultaneous steps to implement the proposed tender offer. They filed a Sched- ule HD with the Securities and E.\change Commission in Washington disclos- ing the information required by the Williams Act. They consulted with state officials in Idaho, New York, and Maryland about compliance v\ith the corpo- rate takeover laws of those States. And the> filed documents with the Idaho Director of Finance in an attempt to satisfy' Idaho's statute. On March 25, 1977, Melvin Baptie, who was then the Deputy Administrator of Securities of the Idaho Department of Finance, sent a telecopy letter of objections to Great Western's filing to the company's offices in Dallas. The letter stated that certain pages of Great Western's SEC Form 1 3D were missing, asked for several additional items of information, and indicated that no hearing would be scheduled, nor other action taken, until all of the requested information had been received. On the same day, Tom McEldowney, the Director of Finance of Idaho, entered an order delaying the effective date of the tender offer. Great Western made no response to Baptie's letter or to McEldowney's order. On March 28, 1977, Great Western filed this action in the United States District Court for the Northern District of Texas, naming as defendants the state officials responsible for enforcing the Idaho, New York, and Maryland takeover laws. The complaint prayed for a declaration that the state laws were invalid insofar as they purported to appK to interstate cash tender offers to purchase securities traded on the national exchange. The claims against the Maryland and New York defendants were dismissed because the former did not attempt to enforce their statute against Great Western and the latter expressly stated that they would not assert jurisdiction over the proposed tender offer. The two Idaho defendants — McEldowney, the Director of Finance, and Wayne Kidwell, then Attorney General of the State' — appeared specially to 5. Baptie. who wrote the letter of comment on March 25, 1977, was not named as a defendant. David H. L^eroy has now replaced Kidwell as Attorney General of the State 353 Pages 176-179 |urisdiction contest jurisdiction and venue, and later filed an answer contesting the merits of the claim. The District Court found four separate statutors' bases for federal jurisdiction.^ It held that personal jurisdiction over the Idaho defendants had been obtained by service pursuant to the Texas long-arm statute. It concluded, however, that venue was improper under the general federal venue statute, 28 U.S.C. SI 391(b),* because the defendants obviously did not reside in Texas and the claim arose in Idaho rather than in Texas. Nonetheless, it decided that venue could be sustained under the special venue provision in )i27 of the Securities Exchange Act of 1934 (1934 Act). On the merits, the District Court held that the Idaho Takeover Act is pre- empted by the Williams Act and places an impermissible burden on interstate commerce. It granted injuncti\e relief that enabled Great Western to acquire the desired Sunshine shares in the fall of 1977. That acquisition did not moot the case, however, because the question whether Great Western has violated Idaho's statute will remain open unless and until the District Court's judgment is finally affirmed. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. The court sustained federal subject-matter jurisdiction on the same four grounds relied upon by the District Court. It then advanced alternative theories in support of both its determination that the District Court has personal jurisdic- tion over the defendants and its conclusion that venue lay in the Northern District of Texas. First, it noted that the Texas long-arm statute authorized the assertion of personal jurisdiction over nonresidents to the fullest extent allow- able under the Due Process Clause of the Fourteenth Amendment. It then held that an Idaho official who seeks to enforce an Idaho statute to prexent a Texas-based corporation from proceeding with a national tender offer has suffi- cient contacts with Texas to support jurisdiction. Second, it held that jurisdic- tion was available under ^27 of the 1934 Act, which gives the federal district courts exclusive jurisdiction over suits brought "to enforce any . . . duty created" by the Act. It based this holding on the theory that Idaho's enforce- ment attempts, by conflicting with the Williams Act, constituted a violation of a "duty" imposed by )i28(a) of the Act. It relied on the same reasoning to support its conclusion that venue was authorized by S27 of the 1934 Act. Finally, disagreeing with the District Court, the Court of Appeals concluded that venue in the Northern District of Texas was also proper under the general federal venue provision, 28 U.S.C. S139I(b), because the allegedly invalid restraint against Great Western occurred there and it was accordingly "the 6. "Ttie Court lias subject matter jurisdiction over this case on four bases: 28 H S C. S1^31 (general federal question), 28 ll.S.C. S1^^2 (diversit\'), 28 U.S.C. \n?7 (acts affecting commerce) and Section 27 of the [Securities Exchange .-Vet of 19H 15U.S.C. S78aa|." 4?9 F. Supp.,at4?0. 8. Section HQl (bl provides: "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." 354 Jurisdiction Pages 176-179 judicial district ... in which the claim arose. ' On the merits, the Court of Appeals agreed with the analysis of the District Court. We noted probable jurisdiction of the appeal. Without reaching either the merits or the constitutional question arising out of the attempt to assert personal jurisdiction over appellants, we now reverse because venue did not lie in the Northern District of Texas. I The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of \enue, which is primarily a matter of choosing a convenient forum. On the other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties. Accordingly, when there is a sound prudential justifica- tion for doing so, we conclude that a court may reverse the normal order of considering personal jurisdiction and venue. Such a justification exists in this case. Although for the reasons discussed in Part II, infra, it is clear that ^27 of the 1934 Act does not pro\ide a basis for personal jurisdiction, the question whether personal jurisdiction was properly obtained pursuant to the Texas long-arm statute is more difficult. Indeed, be- cause the Texas Supreme Court has construed its statute as authorizing the exercise of jurisdiction over non-residents to the fullest extent permitted by the United States Constitution," resolution of this question would require the Court to decide a question of constitutional law that it has not heretofore decided. As a prudential matter it is our practice to avoid the unnecessary decision of novel constitutional questions. We find it appropriate to pretermit the constitutional issue in this case because it is so clear that venue was improper under either ^27 of the 1934 Act or under SI 391(b) of the Judicial Code. [The Court then rejected the theor\ that venue could be maintained under the special venue provision of the 1934 Act.] m Nor, as the District Court correctly concluded, is venue available under S1391(b). The first test of venue under that provision — the residence of the defendants — obviously points to Idaho rather than Texas. The Court of Ap- 11. E.g.. U-Anchor Advertising. Inc. \. Burt. 555 S.W.Zd 760 (Tex. 1977). Appellants argue that this construction is only applicable to private commercial defendants and should not govern either in a suit against the agents of another sovereign State or in one against persons who are not engaged in commercial endeavors. Both the District Court and the Court of Appeals, however, have concluded that the statute does extend to the limits of the Due Process Clause in this case, and it is not our practice to re-examine state-law determinations of this kind. 355 Pages 176-179 jurisdiction peals reasoned, houe\cr, under the second relevant test that the claim arose in Dallas because that is the place where the Idaho officials "invalidh' prevented Great Western from initiating a tender offer for Sunshine."'' The court but- tressed its conclusion by noting that a single action against the officials of New York, Maryland, and Idaho could not ha\e been instituted in any one place unless tlie claim was treated as having arisen in Dallas. The easiest answer to this latter argument is that Great Western's complaint did not in fact raise justiciable claims against any officials save those in Idaho. But that is not the only answer. Although the legal issues raised in the com- plaint challenging the constitutionality of the statutes of three different States were similar, and the convenience of Great Western would obviouslv be served by consolidating the three claims for trial in one district, the general venue statute does not authorize the plaintiff to rely on either of those reasons to justify' its choice of forum. In most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. For that reason. Congress has generally not made the residence of the plaintiff a basis for venue in nondiversity cases. But cf 28 U.S.C. !in9I(e). The desirability of consolidating similar claims in a single proceeding may lead defendants, such perhaps as the New York and Maryland officials in this case, to waive valid objections to otherwise improper venue. But the concern does not justify reading the statute to give the plaintiff the right to select the place of trial that best suits his convenience. So long as the plain language of the statute does not open the severe t>'pe of "venue gap" that the amendment giving plaintiffs the right to proceed in the district where the claim arose was designed to close, ' there is no reason to read it more broadly on behalf of plaintiffs. "' Moreover, the plain language of ^139 1(b) will not bear the Court of Appeals' interpretation. The statute allows venue in "the judicial district ... in which the claim arose." Without deciding whether this language adopts the occasion- ally fictive assumption that a claim may arise in only one district, '"^ it is 1 5. The Court of Appeals properly concluded that the determination of where "the claim arose" for purposes of federal venue under SI 591 is a federal question whose answer depends on federal law. 17. See Brunette Machine Works v. Kockum Industries, 406 U.S. 706, 710. and n.8. As Brunette indicates, the amendment of SI '91 to provide for venue where the claim arose was designed to close the "venue gaps" that existed under earlier versions of the statute in situations in which iomt tortfeasors, or other multiple defendants who contributed to a single injurious act, could not be sued jointly because they resided in different districts. In this case, by contrast. Great Western has attempted to join in one suit three separate claims — each challenging a different statute — against three sets of defendants from three States. The statute simply does not contem- plate such a choice on the part of plaintiffs 18 "The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policv. is to be given a 'liberal' construction." Olberdmg v. Illinois Central R. Co.. ?46 US ??S, 340.' 19. I'hc two sides of this question, and the cases supporting each, are discussed in 1 Moore, supra n, 15, at HO. H2|5.-2], pp. 1-426-1435; Wright, Miller, & Cooper S5806. pp. 28-54, 356 lurisdiction Pages 1~6-1~9 absolutely clear that Congress did not intend to pro\ide for \enue at the resi- dence of the plaintift or to give that part> an unfettered choice among a host of different districts. Rather, it restncted venue either to the residence of the defen- dants or to "a place which may be more convenient to the litigants" — i.e., both of them — "or to the witnesses who are to testif> in the case. " S. Rep. No. 1752, 89th Cong., Zd Sess.. 3 1 1966 1. In our view, therefore, the broadest interpreta- tion of the language of SI 591(b) that is even arguably acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibilit> — in terms of the availabilit>' of witnesses, the accessibiliti. of other relevant e\idence, and the convenience of the defendant (but not of the plaintiffs — may be assigned as the locus of the claim. This case is not, howe\er. unusual. For the claim involved has only one obvious locus — the District of Idaho. Most impwrtantly, it is action that was taken in Idaho by Idaho residents — the enactment of the statute by the legisla- ture, the review of Great \\ estem's filing, the forwarding of the comment letter by Deput> .Administrator Baptie, and the entr> of the order postponing the effective date of the tender by Finance Director McEldowney — as well as the future action that may be taken in the State by its officials to punish or to remedy any violation of its law, that provides the basis for Great Western's federal claim. For this reason, the bulk of the relevant evidence and wit- nesses— apart from employees of the plaintiff, and securities experts who come from all over the United States'' — is also located in the State. Less impKjrtant. but nonetheless relevant, the nature of this action challengmg the constitutionalitv' of a state statute makes venue in the District of Idaho appropri- ate. The ments of Great Western "s claims may well depend on a proper inter- pretation of the State's statute, and federal judges sitting in Idaho are better qualified to construe Idaho law, and to assess the character of Idaho's probable enforcement of that law . than are judges sitting elsew here. W e therefore reject the Court of Appeals' reasoning that the "claim arose" in Dallas because that is where Great \\ estem proposed to initiate its tender offer, and that is where Idaho's statute had its impact on Great \\ estem. .lAside from the fact that these 'contacts " between the 'claim " and the Texas District fall far short of those connecting the claim and the Idaho Distiict, we note that this reasoning would subject the Idaho officials to suit in almost every district in the country. For even, prospective offeree — be he in New York, Los .Angeles, Miami, or elsewhere, rather than in Dallas — could argue with equal force (or Great Western could argue on his behalf i that he had intended to duect his local broker to accept the tender and was frustiated in that desire by the Idaho -1. -\t the tnal held in the Northern District of Texas, the witness roster, in addition to various Idaho officials and Great \\ estem employees from Dallas, mainly included eitperts from the New York area as well as one each from California, Manland. Texas, and \\ isconsin. 357 Pages 176-179 |urisdiction law." As we noted above, however, such a reading of SI '91(b) is inconsistent with the underlying purpose of the provision, for it would leave the venue decision entireK' in the hands of plaintiffs, rather than making it "primarily a matter of convenience of litigants and witnesses." In short, the District of Idaho is the only one in which "the claim arose" within the meaning of JiI39I(b). The judgment of the Court of Appeals is reversed. [justice White, joined by Justices Brennan and Marshall, dissented on the grounds that the special venue provision of the 1934 act should be interpreted to allow the action to be brought in Texas. The dissenting Justices did not reach the question of whether the ordinary venue statute would apply to the case.] NOTES AND PROBLEMS 1. The majority states that venue is designed chiefly for the convenience of the parties. How will the convenience of the parties, including that of the defendant, be served by reversing the results of a trial that has already taken place? Note that in many cases, the result will be to allow a second suit in place of proper venue. Should venue decisions be reviewed right away or not at all? 2. Should jurisdiction have existed over the state defendants in Texas in the present case? 3. The majority asserts: "In most instances, the purpose of statutorily speci- fied venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. For that reason. Congress has generally not made the residence of the plaintiff a basis for venue in nondiversity cases." If Congress is so concerned about protecting the defendant, why did it provide for venue where all the plaintiffs reside in diversity cases? Are there any factors that adequately distinguish diversity from nondiversity cases in this regard? 2. Transfer Under 28 U.S.C. \^p404 and 1406 and Foruw Non Conveniens Page 188. Before E. Federal Subject-Matter Jurisdiction add: Piper Aircraft Co. v. Reyno 454 U.S. 235(1981) Justice Marshall delivered the opinion of the court. These cases arise out of an air crash that took place in Scotland, Respondent, acting as representative of the estates of several Scottish citizens killed in the accident, brought wrongful death actions against petitioners in the United 22. Sunsliinc's shareholders are located in 49 States as well as the District of Columbia and Puerto Rico. 358 Jurisdiction Page 188 States District Court for the Middle District of Pennsylvania. Petitioners mo\ed to dismiss on the ground of forum non conveniens. After noting that an alterna- tive forum existed in Scotland, the District Court granted their motions. The United States Court of Appeals for the Third Circuit reversed. The Court of Appeals based its decision, at least in part, on the ground that dismissal is automatically barred where the law of the alternative forum is less favorable to the plaintiff than the law of the forum chosen by the plamtiff. Because we conclude that the possibilit\' of an unfaxorable change in law should not, by itself, bar dismissal, and because we conclude that the District Court did not otherwise abuse its discretion, we reverse. A In July 1976, a small commercial aircraft crashed in the Scottish highlands during the course of a charter flight from Blackpool to Perth. The pilot and fi\e passengers were killed instantly. The decedents were all Scottish subjects and residents, as are their heirs and next of kin. There were no eye-witnesses to the accident, .^t the time of the crash the plane was subject to Scottish air traffic control. The aircraft, a twin engine Piper Aztec, was manufactured in Pennsylvania by petitioner Piper Aircraft Company ("Piper"). The propellers were manufac- tured in Ohio by petitioner Hartzell Propeller, Inc. ("HartzeU'l. At the time of the crash the aircraft was registered in Great Britain and was owned and maintained b\ Air Na\igation and Trading Co., Ltd. ("Air Navigation"). It was operated by McDonald Aviation, Ltd. ("McDonald"), a Scottish air taxi ser- \ice. Both Air Navigation and McDonald were organized in the United King- dom. The wreckage of the plane is now in a hangar in Farnsborough, England. The British Department of Trade investigated the accident several months after it occurred. A preliminar\ report found that the plane crashed after devel- oping a spin, and suggested that mechanical failure in the plane or the pro- peller was responsible. At Hartzell's request, this report was reviewed by a three-member Re\iew Board, v\hich held a nine-day adversary hearing at- tended b\ all interested parties. The Review Board found no evidence of defec- ti\e equipment and indicated that pilot error may ha\e contributed to the accident. The pilot, who had obtained his commercial pilot's license only three months earlier, was flying over high ground at an altitude considerabK' lower than the minimum height required by his company's operations manual. In July 1977, a California probate court appointed respondent Gaynell- Reyno administratrix of the estates of the five passengers. Reyno is not related to and does not know any of the decedents or their sur\i\ors; she was a legal secretary to the attorney who filed this lawsuit. Se\eral days after her appoint- ment, Re\no commenced separate wrongful death actions against Piper and Hartzell in the Superior Court of California, claiming negligence and strict 359 Page 188 |urisdiction iiabilitv. Air Na\'igation, McDonald, and the estate of the pilot are not parties to this Htigation. The survivors of the five passengers whose estates arc repre- sented by Re\no filed a separate action in the United Kingdom against Air Navigation, McDonald, and the pilot's estate. Reyno candidly admits that the action against Piper and Hartzell was filed in the United States because its laws regarding liabilih', capacity to sue, and damages are more favorable to her position than are those of Scotland. Scottish law does not recognize strict liability in tort. Moreover, it permits wrongful death actions only when brought by a decedent's relatives. The relatives may sue only for "loss of support and society." On petitioner's motion, the suit v\as removed to the United States District Court for the Central District of California. Piper then moved for transfer to the United States District Court for the Middle District of Pennsylvania, pursu- ant to 28 U.S.C. !il404(a). Hartzell moved to dismiss for lack of personal jurisdiction, or in the alternative, to transfer.^ In December 1977, the District Court quashed service on Hartzell and transferred the case to the Middle District of Pennsylvania. Respondent then properly ser\ed process on Hartzell. B In May 1978, after the suit had been transferred, both Hartzell and Piper moved to dismiss the action on the ground of foriim non conveniens. The District Court granted these motions in October 1979. It relied on the balancing test set forth by this Court in Gulf Oil Corporation v. Gilbert, and its companion case, Koster v. Lumbermen's Mut. Gas. Co. In those decisions, the Court stated that a plaintiffs choice of forum should rarely be disturbed. Howe\cr, when an alterna- tive forum has jurisdiction to hear the case, and when trial in the chosen forum would "establish . . . oppressiveness and vexation to a defendant out of all pro- portion to plaintiff's convenience," or when the "chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems," the court may, in the exercise of its sound discretion, dismiss the case. To guide trial court discretion, the Court provided a list of "private interest factors" affecting the convenience of the litigants, and a list of "public interest factors" affecting the convenience of the forum. Gilbert, supra.'' 5. The District Court concluded that it could not assert personal jurisdiction over Hartzell consistent with due process. However, it decided not to dismiss Hartzell because the corporation would be amenable to process in Pennsylvania. 6. Tlic factors pertaining to the private interests of the litigants included the "rclati\e ease of access to sources of proof; avaiiabilit)- of compulsor\' process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expedi- tious, and inexpensive." Gilbert, supra. The public factors bearing on the question included the administrative difficulties flowing from court congestion; the "local interest in having localized controversies decided at home"; the interest in having the trial of a di\ersity case in a forum that is at home with the law that must go\ern the action; the avoidance of unneces.sar\ problems in conflicts of law. or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with iurv dut\. 360 jurisdiction Page 188 [The Court summarized the district court's appHcation of the principles of Gilbert and Koster and the Court of Appeals' rejection of that analysis.] n The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive lau that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be gi\en conclusive or e\en substantial weight in the forum non conveniens inquiry. ... If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the ver)' flexibility that makes it so \aluable. In fact, if conclusive or substantial v\eight were gixen to the possibilit>- of a change in law, the forum non conveniens doctrine would become virtually useless. Jurisdiction and venue requirements are often easily satisfied. As a result, many plaintiffs are able to choose from among se\eral forums. Ordinar- ily, these plaintiffs will select that forum whose choice of law rules are most advantageous. Thus, if the possibility of an unfavorable change in substantive law is given substantial v\eight in the forum non conveniens inquiry, dismissal would rarely be proper. [The Court went on to discuss practical problems v\ith the Court of Appeals' approach to the case: Choice-of-law issues that might not otherwise need to be resolved would have to be in order to decide forum non conveniens motions. Foreign plaintiffs, secure against forum non conveniens dismissal when it would result in less favorable law, would be attracted to American courts, whose law is often more fa\orable to plaintiffs, resulting in more congested American courts. [The Court also rejected an analogy to the decision in Van Dusen v. Bar- rack, discussed in note 5 at pagel85 of the casebook. The argument was that forum non conveniens was like Sl"t04(a) transfer. Under Van Dusen, the appli- cable law is not to be changed because of transfer. The exact same result cannot be accomplished in the forum non conveniens situation because there is no way to require a Scottish court to apply American law the way that the Supreme Court can require a federal district court to which a case has been transferred under S 1404(a) to apply the law of the transferor court. Defendants argued that the goal of avoiding a change of law should therefore be accom- plished by forbidding transfer. The Court rejected the argument by finding that the no-change-of-law purpose of ^ 1404(a) was present for reasons peculiar to that statute and inapplicable to the forum non conveniens situation.] We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquir)'. Of course, if the remedy provided by the alternatixe forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight; the district court ma\ conclude that dismissal would 361 Page 188 Jurisdiction not be in the interests of justiee."" In this ease, howe\er, the remedies that would be provided by the Scottish courts do not fall within this category. Although the relatives of the decedents may not be able to rely on a strict liabilitv' theory, and although their potential damage award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly. m The Court of Appeals also erred in rejecting the District Court's Gilbert analysis. The Court of Appeals stated that more weight should have been given to the plaintiff's choice of forum, and criticized the District Court's analysis of the private and public interests. However, the District Court's decision regard- ing the deference due plaintiff's choice of forum was appropriate. Furthermore, we do not believe that the District Court abused its discretion in weighing the private and public interests. The District Court acknowleged that there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alterna- tive forum. It held, however, that the presumption applies with less force when the plaintiff or real parties in interest are foreign. The District Court's distinction between resident or citizen plaintiffs and foreign plaintiffs is fully justified. In Koster, the Court indicated that a plain- tiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conve- niens inquiry is to ensure that the trial is eonxenient, a foreign plaintiff's choice deserves less deference."^ B The forum non conveniens determination is committed to the sound discre- tion of the trial court. It may be reversed only when there has been a clear 22. M tlic outset of any forum non conveniens iiiquin , the court must dttcruuuc « lather there exLsts an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other iurisdiction. In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. 24. Respondents argue that since plaintiffs will ordinarily file suit in the jurisdiction that offers the most favorable law, establishing a strong presumption in favor of both home and foreign plaintiffs will ensure that defendants will always be held to the highest possible standard of account- ability for their purported wrongdoing. However, the deference accorded a plaintiffs choice of forum has never been intended to guarantee that the plaintiff will be able to select the law that will govern the ease. 362 Jurisdiction Page 188 abuse of discretion; where the court has considered all rele\ant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference. Here, the Court of Appeals expressly acknowledged that the standard of review was one of abuse of discretion. In examining the District Court's analysis of the public and private interests, however, the Court of Appeals seems to have lost sight of this rule, and substituted its own judgment for that of the District Court. (1) In analyzing the private interest factors, the District Court stated that the connections with Scotland are "overwhelming." This characterization may be somewhat exaggerated. Particularly v\ith respect to the question of relative ease of access to sources of proof, the private interests point in both directions. As respondent emphasizes, records concerning the design, manufacture, and test- ing of the propeller and plane are located in the United States. She would have greater access to sources of proof rele\ant to her strict liability and negligence theories if trial were held here."' However, the District Court did not act unreasonably in concluding that fewer evidentiary problems would be posed if the trial were held in Scotland. A large proportion of the relevant evidence is located in Great Britain. The Court of Appeals found that the problems of proof could not be given any weight because Piper and Hartzell failed to describe with specificity the evidence they would not be able to obtain if trial were held in the United States. It suggested that defendants seeking forum non conveniens dismissal must submit affida\its idcntif\ing the witnesses they would call and the testi- mony these witnesses would pro\ide if the trial were held in the alternative forum. Such detail is not necessary. Piper and Hartzell have moved for dismis- sal precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interxiew. Requiring extensive investigation would defeat the purpose of their motion. Of course, defendants must provide enough information to enable the District Court to balance the parties' interests. Our examination of the record convinces us that sufficient information was provided here. Both Piper and Hartzell submitted affidavits describing the evidentiary problems they would face if the trial were held in the United States. The District Court correctly concluded that the problems posed by the ina- bility to implead potential third party defendants clearly supported holding the trial in Scotland. Joinder of the pilot's estate. Air Navigation, and McDonald is crucial to the presentation of petitioners' defense. If Piper and Hartzell can show that the accident was caused not by a design defect, but rather by the negligence of the pilot, the plane's owners, or the charter company, they will be relieved of all liability. It is true, of course, that if Hartzell and Piper were 25. In the future, where similar problems are presented, district courts might dismiss subject to the condition that defendant corporations agree to provide the records relevant to the plaintifTs claims. 363 Page 188 lurisdiction found liable after a trial in the United States, they could nistitutc an action for indemnity or contribution against these parties in Scotland. It would be far more convenient, however, to resolve all claims in one trial. The Court of Appeals rejected this argument. Forcing petitioners to rely on actions for in- demnity or contributions would be "burdensome" but not "unfair." Finding that trial in the plaintiff's chosen forum would be burdensome, however, is sufficient to support dismissal on grounds of forum non conveniens. (2) The District Court's review of the factors relating to the public interest was also reasonable. On the basis of its choice-of-law analysis, it concluded that if the case were tried in the Middle District of Pennsylvania, Pennsylvania law would apply to Piper and Scottish law to Hartzell. It stated that a trial involving two sets of laws would be confusing to the jury. It also noted its own lack of familiarity with Scottish law. Consideration of these problems was clearly ap- propriate under Gilbert; in that case we explicitly held that the need to apply foreign law pointed towards dismissal. The Court of Appeals found that the District Court's choice-of-law analysis was incorrect, and that American law would apply to both Hartzell and Piper. Thus, lack of familiarity with foreign law would not be a problem. Even if the Court of Appeals' conclusion is correct, however, all other public interest factors favored trial in Scotland. Scotland has a very strong interest in this litigation. The accident occurred in its airspace. All of the decedents were Scottish. Apart from Piper and Hartzell, all potential plaintiffs and defendants are either Scottish or English. As we stated in Gilbert, there is "a local interest in having localized controversies decided at home. " Respondent argues that American citizens have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional deterrence might be obtained if Piper and Hart- zell were tried in the United States, where they could be sued on the basis of both negligence and strict liability. However, the incremental deterrence that would be gained if this trial were held in an American court is likeK' to be insignificant. The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here. IV The Court of Appeals erred in holding that the possibilit> of an unfavorable change in law bars dismissal on the ground oi forum non conveniens. It also erred in rejecting the District Court's Gilbert analysis. The District Court properly decided that the presumption in favor of the respondent's forum choice applied with less than maximum force because the real parties in interest arc foreign. It did not act unreasonably in deciding that the private interests pointed towards trial in Scotland. Nor did it act unreasonably in deciding that the public interests favored trial in Scotland. Thus, the judgment of the Court of Appeals is reversed. 364 lurisdiction Page 188 [Justices Powell and O'Connor took no part in the decision. Justices Bren- nan, Stevens, and White agreed with the proposition that forum non conve- niens dismissal should not be denied simply because it would result in change of applicable law, but dissented from consideration of the district court's exer- cise of its discretion on the ground that that issue was not certified by the court when it granted certiorari.] NOTES AND PROBLEMS 1. hi note 22 the court states that forum non conveniens would be appropriate if the foreign court could not provide an adequate remedy for the wrong suffered by the plaintiff. Does it make any sense to make such a statement but to allow dismissal when the foreign court may apply a law that defeats the plaintiffs claim? Even if the plaintiffs claim is not defeated but only the measure of damages is different (as in the case of Scottish vs. American law on wrongful death), does it make sense when the damages allowed in the Scottish court might be only a small fraction of those allowed in the American court? If that situation isn't covered by footnote 22, what is? 2. Should the Court have considered the possibility of a conditional dis- missal— the condition being that the defendant stipulate to the applicability of American law? Cf the Court's suggestion in footnote 25 that the dismis- sal could be conditioned upon the defendant's providing relevant records. Even if the Scottish court were to relieve the defendant of the condition, would the plaintiff be any worse off than she was under the Court's actual decision? E. Federal Subject Matter Jurisdiction 1. Federal Question Jurisdiction Page 188. Delete American Invs-Co. Substitute: Franchise Tax Board v. Construction Laborers Vacation Trust 10? S. Q. 2841 (1983) [Plaintiff is a California agency charged with the collection of state personal income taxes. Under California law, the agency had the right to require any- one holding property belonging to a delinquent taxpayer to turn the property over to the agency. The defendant was a trust fund set up to administer provisions of \arious collective bargaining agreements concerning vacation ben- efits for construction workers. The trusts were of the kind extensively regulated by ERISA, the Employment Retirement Income Security Act of 1974, a fed- eral statute. Plaintiff sued defendant concerning certain delinquent taxes owed 365 Page 188 Jurisdiction under California state law. Suit was brought in state court. Defendant removed the action to the federal district court under 28 U.S.C. Sm^l- which allows the removal of actions from state to federal court on the condition that the action was within the original jurisdiction of the federal court — that is, that the action would not have been dismissed for lack of federal subject matter jurisdiction if it had been brought in federal court in the first place. Since there was no diversit\' of citizenship between the parties, the only basis for arguing that there was original jurisdiction over the claim in the federal courts was the assertion of "federal question" jurisdiction. In this case, the defendant trust argued that the California law that allowed the agency to seize taxpayer assets co\ered by the trust was invalid under the federal statue (ERISA) that allegedly protected trust funds from such seizures. The trust was arguing, in other words, that the proposition that federal law made the agency's claim invalid was enough to create "federal question" jurisdiction. The Supreme Court rejected the argument, as explained below.] The jurisdictional structure at issue in this case has remained basically un- changed for the past century. With exceptions not relevant here, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be remoxed by the defendant or the defendants, to the district court of the United States for the district and di\ ision embracing the place where such action is pending." 28 U.S.C. ^1441. If it appears before final judgment that a case was not properly removed, because it was not within the original jurisdiction of the United States district courts, the district court must remand it to the state court from which it was removed. See S 1447(c). For this case — as for many cases where there is no diversity of citizenship between the parties — the propriety of removal turns on whether the case falls within the original "federal question" jurisdiction of the United States district courts: "The district courts shall have jurisdiction of all civil actions arising under the Consti- tution, laws, or treaties of the United States." 28 U.S.C. Sl^^l- Since the first version of ^1331 was enacted. Act of Mar. 3, 1875, ch. 137, jil, 18 Stat. 470, the statutory phrase "arising under the Constitution, laws, or treaties of the United States" has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts. Especially when considered in light of Jil44rs removal jurisdiction, the phrase "arising under" masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.^ 8. The statute's "arising under" language tracks similar language in art. III. )i2 of the Constitu- tion, which has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially "forms an ingredient,'" see Osborn v. Bank of the United States. 9 Wheat. 738. 823. 6 L. Ed. 204 (1824). and its limited legislative histop.- suggests that the 44th Congress may have meant to "confer the whole power vihich the Constitution conferred. " 2 Cong. Rec. 4986 (1874) (remarks of Sen, Carpenter). Nevertheless, we have only rccentlv reaffirmed what has long been recognized — that "".Article III "arising under" jurisdiction is broader than federal question jurisdiction under \n31."' Verlinden B A' v Central Bank of Nigeria. — U.S. — .103 S. Ct. 1962. 1972(1983). 366 Jurisdiction Page 188 The most familiar definition of the statutory "arising under" limitation is Justice Holmes' statement, "A suit arises under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co. However, it is well settled that Justice Holmes' test is more useful for describing the vast majority of cases that come within the district courts' original jurisdiction than it is for describing which cases are beyond district court jurisdiction. We have often held that a case "arose under" federal law where the vindication of a right under state law necessarily turned on some construction of federal law, and even the most ardent proponent of the Holmes test has admitted that it has been rejected as an exclusionary principle. Leading commentators have sug- gested that for purposes of Jil331 an action "arises under" federal law "if in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicabilih' to his case of proposition of federal law," P. Bator, P. Mishkin. D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 889 (2d ed. 1973) (hereinafter Hart & Wechsler); cf T. B. Harms Co. ("a case may 'arise under' a law of the United States if the complaint discloses a need for determining the meaning or application of such a law"). One powerful doctrine has emerged, however — the "well-pleaded com- plaint" rule — which as a practical matter severely limits the number of cases in which state law "creates the cause of action" that may be initiated in or removed to federal district court, thereby avoiding more-or-less automatically a number of potentially serious federal-state conflicts. [W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute. . . . must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose. Thus, a federal court does not ha\e original jurisdichon over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise, or that a federal defense the defendant may raise is not sufficient to defeat the claim. "Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution."" Louisville & Nashville R. Co. v. Mottley. For better or worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiffs complaint establishes that the case "arises under" federal law.** "[A] right or immunity created b\ the Constitution or laws 9. Ttie well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction. It IS possible to conceive of a rational jurisdictional system in which the answer as well as the complaint would be consulted before a determination was made whether the case "arose under" federal law. or in which original and removal jurisdiction were not co-extensive. Indeed, until the 367 Page 188 Jurisdiction of the United States must be an element, and an essential one, of the plaintiff's cause of action." Gully v. First National Bank. For many cases in which federal law becomes relevant only insofar as it sets bounds for the operation of state authority, the well-pleaded complaint rule makes sense as a quick rule of thumb. . . . The rule, however, may produce awkward results, especially in cases in which neither the obligation created by state law nor the defendant's factual failure to comply are in dispute, and both parties admit that the only question for decision is raised by a federal preemption defense. Ne\'ertheless, it has been correctly understood to apply in such situations. As we said in Gully, "By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. " III Simply to take these principles is not to appl\' them to the case at hand. Appellants' complaint sets forth two "causes of action, " one of which expressly refers to ERISA; if either comes within the original jurisdiction of the federal courts, removal was proper as to the whole case. See 28 U.S.C. ?il441(c). Although appellant's complaint does not specifically assert any particular statu- tory entitlement for the relief it seeks, the language of the complaint suggests (and the parties do not dispute) that appellant's "first cause of action" states a claim under Cal. Rev. & Tax. Code S 188 18, and its "second cause of action" states a claim under California's Declaratory Judgment Act, Cal. Civ. Proc. Code Jil060 (West 1980). As an initial proposition, then, the "law that creates the cause of action" is state law, and original federal jurisdiction is una\ailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one or the other claim is "reallv" one of federal law. Even though state law creates appellant's causes of action, its ease might still "arise under" the laws of the United States if a well-pleaded complaint estab- lished that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties. For appellant's first cause of action — to enforce its levy, under !iil8818 — a straightforward application of the well-pleaded complaint rule precludes original federal court jurisdiction. California law establishes a set of conditions, without reference to federal law. 1887 anicTidnicnts to the 18TS Act. the well-pleaded eomplaiiit rule uas not applied In full force to cases removed from state court; the defendant's petition for removal could furnish the necessary- guarantee that the case necessarily presented a substantial question of federal law . Commentators have repeatedly proposed that some mechanism be established to permit removal of cases in which a federal defense may be dispositive. But those proposals have not been adopted. 368 Jurisdiction Page 188 under which a tax le\\' may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state lav\-. The well- pleaded complaint rule was framed to deal with precisely such a situation. As we discuss above, since 1887 it has been settled law that a case ma\' not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiffs complaint, and even if both parties admit that the defense is the only question truly at issue in the case. Appellant's declaratory judgment action poses a more difficult problem. Whereas the question of federal preemption is relevant to appellant's first cause of action only as a potential defense, it is a necessary element of the declarator) judgment claim. Under Cal. Ci\-. Proc. Code S 1060, a parh- with an interest in property ma> bring an action for a declaration of another party's legal rights and duties with respect to that property upon showing that there is an "actual contro- versy relating to the respective rights and duties " of the parties. The only ques- tions in dispute between the parties in this case concern the rights and duties of CL\T and its trustees under ERISA. Not only does appellant's request for a declaratory judgment under California law clearly encompass questions gov- erned by ERISA, but appellant's complaint identifies no other questions as a subject of controversy between the parties. Such questions must be raised in a well-pleaded complaint for a declaratory judgment. '' Therefore, it is clear on the face of its well-pleaded complaint that appellant may not obtam the relief it seeks in its second cause of action ("[tjhat the court declare defendants legallv' obligated to honor all future levies bv the Board upon [CLVT]," App. 9) without a construction of ERISA and/or an adjudication of its preemptiv e effect and consti- tutionalih- — all questions of federal law. Appellant argues that original federal court jurisdiction over such a com- plaint is foreclosed by our decision in Skelly Oil Co. v. Phillips Petroleum Co. As we shall see, however, Skellv' Oil is not directly controlling. in Skelly Oil, Skelly Oil and Phillips had a contract, for the sale of natural gas, that entitled the seller — Skelly Oil — to terminate the contract at any time after December I, 1946, if the Federal Power Commission had not yet issued a certificate of convenience and necessity to a third party, a pipeline company to whom Phillips intended to resell the gas purchased from Skellv Oil. Their dispute began when the Federal Power Commission informed the pipeline company on November 30 that it would issue a conditional certificate, but did not make its order public until December 2. By this time Skelly Oil had notified Phillips of its decision to terminate their contract. Phillips brought an action in United States district court under the federal Declaratorv' Judgment Act, 28 U.S.C. .\220I, seeking a declaration that the contract was still in effect. 15. To obtain declarator, relief in California, a partv- must plead "facts showing the existence of an actual controversy relating to the legal rights and duties of the parties." W'ellenkamp v Bank of .America 369 Page 188 jurisdiction There was no di\ersity between the parties, and we held that Phillips' claim was not within the federal question jurisdiction conferred by ;U3M. We reasoned: "[Tlhe operation of the Declaratory Judgment Act is procedural only." Con- gress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, "jurisdiction" means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act. Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for the resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiffs right e\en though no immediate enforcement of it was asked. But the requirements of jurisdiction — the limited subject matters which alone Congress had authorized the District Courts to adjudicate — were not impliedly repealed or modified. 339 U.S., at 671-672. We then observed that, under the well-pleaded complaint rule, an action by Phillips to enforce its contract would not present a federal question. Skellv Oil has come to stand for the proposition that "if, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created action, jurisdiction is lacking." lOA C. Wright, A. Miller & M. Kane, Federal Practice and Procedure !i2767, at 744-745 (2d ed. 1983). 1. As an initial matter, we must decide whether the doctrine of Skelly Oil limits original federal court jurisdiction under ^1331 — and by extension re- moval jurisdiction under !il441 — when a question of federal law appears on the face of a well-pleaded complaint for a state law declaratory judgment. Apparently, it is a question of first impression. As the passage quoted above makes clear, Skelly Oil relied significantly on the precise contours of the federal Declaratory Judgment Act as well as of !i 1331. Cf. 339 U.S., at 674 (stressing the need to respect "the limited procedural purpose of the Declaratory Judg- ment Act"). The Court's emphasis that the Declaratory Judgment Act was intended to affect only the remedies available in a federal district court, not the court's jurisdiction, was critical to the Court's reasoning. Our interpretation of the federal Declaratory Judgment Act in Skelly Oil does not appK of its own force to state declaratory judgment statues, many of which antedate the federal statute. Yet while Skelly Oil itself is limited to the federal Declaratory Judgment Act, fidelitv' to its spirit leads us to extend it to state declaratory judgment actions as well. If federal district courts could take jurisdiction, either originally or by removal, of state declaratory judgment claims raising questions of federal law. without regard to the doctrine of Skelly Oil, the federal Declaratory Judgment Act — with the limitations Skellv Oil read into it — would become a dead 370 Jurisdiction Page 188 letter. For any case in which a state declaratori judgment action was available, litigants could get into federal court for a declarator, judgment despite our interpretation of S2201, simply by pleading an adequate state claim for a declaration of federal law. Having interpreted the Declarator) judgment \c[ of 1934 to include certain limitations on the jurisdiction of federal district courts to entertain declaratory judgment suits, we should be extremely hesitant to interpret the Judiciary Act of 1875 and its 1887 ammendments in a way that renders the limitations in the later statute nugator\. Therefore, we hold that under the jurisdictional statutes as they now stand federal courts do not ha\e original jurisdiction, nor do they acquire jurisdiction on removal, when a federal question is presented by a complaint for a state declarator\' judgment, but Skelly Oil would bar jurisdiction if the plaintiff had sought a federal declaratory judgment. 2. The quesHon, then, is whether a federal district court could take jurisdic- tion of appellant's declaratorv' judgment claim had it been brought under 28 U.S.C. S2201.'" The application of Skelly Oil to such a suit is somewhat un- clear. Federal courts have regularly taken original jurisdiction over declarator)' judgment suits in which, if the declarator)- judgment defendant brought a coer- cive action to enforce its rights, that suit would necessariK present a federal question.''' Section 502la)(3) of ERISA specifically grants trustees of ERISA covered plans like CLVT a cause of action for injunctive relief when their rights and duties under ERISA are at issue, and that action is exclusively governed by federal law. If CLVT could have sought an injunction under ERISA against application to it of state regulations that require acts inconsistent with ERISA, does a declaratory judgment suit by the State "arise under" federal law? We think not. We have alvva)s interpreted what Skelly Oil called "the cur- rent of jurisdictional legislation since the Act of March 3, 1875," with an eye to practicality and necessih . "What is needed is something of that common- sense accommodation of judgment to kaleidoscopic situations which character- izes the law in its treatment of causation ... a selective process which picks the substantial causes out of the web and lays the other ones aside." Gully v . First National Bank. There are good reasons why the federal courts should not entertain suits by the States to declare the validit)' of their regulations despite possibly conflicting federal law. States are not significantly prejudiced bv an inability to come to federal court for a declarator)' judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a 18 It may seem odd that, for purposes of determming wliether removal was proper, we analyze a claim brought under state law, in state court, by a partv who has conhnuously objected to district court jurisdiction over its case, as if that party has been trvmg to get original federal court jurisdiction all along That irony, however, is a more-or-less constant feature of the removal statute, under which a case is removable if a federal district court could have taken jurisdiction had the same complaint been filed. 19. For instance, federal courts have consistently adjudicated suits by alleged patent infringers to declare a patent invalid, on the theory that an infringement suit by the declaratory judgment defendant would raise a federal question over which the federal courts have exclusive juris- diction, . - - 371 Page 188 |urisdiction variety of means by wliicli they can enforce their own laws in their own courts, and the)' do not suffer if the preemption questions such enforcement may raise are tested there. The express grant of federal jurisdiction in ERISA is limited to suits brought by certain parties, as to whom Congress presumably determined that a right to enter federal court was necessary to further the statute's purposes. It did not go so far as to provide that any suit against such parties must also be brought in federal court when they themseKes did not choose to sue. The situation presented by a State's suit for a declaration of the validity of state law is sufficiently removed from the spirit of necessity and careful limitation of district court jurisdiction that informed our statutory interpretation in Skelly Oil and Gully to convince us that, until Congress informs us otherwise, such a suit is not within the original jurisdiction of the United States district courts. Ac- cordingly, the same suit brought originally in state court is not removable either. . . . IV Our concern in this case is consistent application of a system of statutes conferring original federal court jurisdiction, as they have been interpreted b> this Court over many years. Under our interpretations. Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law. We hold that a suit by state tax authorities both to enforce its levies against funds held in trust pursuant to an ERlSA-covered employee benefit plan, and to declare the validity of the levies notwithstanding ERISA, is neither a creature of ERISA itself nor a suit of which the federal courts will take jurisdiction because it turns on a question of federal law. Accordingly, we vacate the judgment of the Court of Appeals and remand so that this case may be re- manded to the Superior Court of the State of California for the Countv' of Los Angeles. NOTES AND PROBLEMS I. Test your understanding of the federal question problem b\ answering the following questions: a. What is an example of the "normal," "typical, " or "easy" federal question case (of which Franchise Tax Board is not one)? b. Under what law was the plaintiff agencv' suing in Franchise Tax Board? What was the law that the defendant trust invoked by way of a defense? c. What is the usual test used to determine when a case that admittedly involves federal law may also be said to "arise under" federal law and therefore be within the jurisdiction of the federal courts? 372 Jurisdiction Page 188 d. What is the significance of the distinction drawn by the Court in footnote 8 between the "arising under" language in Article III of the Constitution and the "arising under" language in 28 U.S.C. SI??]? e. A declaratory judgment action turns the usual kind of case around — the person who ordinarily would have been the defendant becomes a plaintiff in the declaratory judgment action, seeking a declaration that the opposing party does not have rights that have been claimed. What is the rule on federal question jurisdiction for cases brought originally in federal court under the Federal Declaratory Judgment Act? What was the reasoning that led to that rule? f What is the distinction between actions brought under the Federal Declar- atory Judgment Act and actions brought under state declaratory judgment acts, and subsequently removed to federal court, that might have justified a different treatment for the two? Why did the Supreme Court decide not to treat them differently? 2. In Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323 (2d Cir. 1982), the plaintiff brought suit in federal court seeking (a) a declaration that a state statute concerning employee benefits was invalid because inconsistent with ERISA (the same federal statute involved in Franchise Tax Board) and (b) an injunction against state officials forbidding enforcement of the state statute. The court upheld jurisdiction because "affirmative coercive relief" (the injunc- tion) was being sought, not merely a declaration of rights that would have been a defense in a "normal" nondeclaratory action. In other words, for the injunc- tion portion of plaintiff's claim, the right to get the injunction was based on federal law and was not merely a defense turned into a claim by the magic of the declaratory judgment action. (As we will see below, once federal jurisdic- tion has been established over part of a case, it may be possible to assert it over the remaining, nonfederal portions of the case under the doctrines of pendent and ancillary jurisdiction.) The Supreme Court, in a one-line opinion handed down after Franchise Tax Board, affirmed the decision under the name Arcudi V. Stone & Webster Engineering Corp., — U.S. — , 103 S. Ct. Rep. 3564 (1983). Won't it usually be possible to add an injunction to a declaratory judgment action (please declare that my opponent has no rights, and enjoin him from trying to enforce any), thus causing Arcudi to undermine Franchise Tax Board? Isn't the danger of undermining previous interpretations of the Federal Declara- tory Judgment Act the reason that led the Supreme Court to reject federal question jurisdiction in state declaratory judgment actions? Why didn't the fear of undermining work in Arcudi as it did in Franchise Tax Board? What's going on? 373 THE ERIE PROBLEM III A. State Law in the Federal Courts 1. When State Law Must Be Apphed Page 262: Note 7 discusses the Walker case, which was decided before the addition of subsection (j) to Rule 4. Subsection (j) provides: Summons: Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was made cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. . . . Does a combination of the Hanna v. Plumer rationale and the new Rule 4(j) make Walker obsolete? 375 REMEDIES IV B. Money Damages Page 299. After the carryover paragraph, add: In addition to the common law and statuton provisions discussed in the casebook. Federal Rule of Civil Procedure 68 also has the potential for shifting attorneys' fees. Understanding Rule 68 requires a little background. The part}' who wins a lawsuit generally gets not only the damage or injuncti\e relief she has sought, but "costs" (itemized in the next section). To that extent the loser is penalized for litigating what turned out to be a losing case. Rule 68 alters this scheme by permitting defendants to make formal settlement offers, and creating incentives for plaintiff to accept them. If plaintiff rejects an offer and then recovers less than the offered amount, the Rule (1) bars plaintiff from collecting his own costs and (2) requires him to pa\' defendant's costs incurred after the offer. As the next section indicates, in American courts the "costs ' collected by \ictorious parties (and shifted by Rule 68) do not ordinarily include attorneys' fees. In a number of cases, however, statutes change that rule, permitting plaintiffs who have prevailed in particular kinds of claims to collect attorneys' fees as part of costs. Marek v. Chesney, 105 S. Ct. 3012 (1985) dealt with the effect of Rule 68 on such a fee statute. The claim grew out of a police shooting and was brought under 42 U.S.C. .SI983, a frequently invoked civil rights statute. A companion statute, 28 U.S.C. S1988, provides that a plaintiff who wins a S1983 case is ordinarily entided to attorneys' fees from the defendant. The defendants in Marek had made a pretrial offer of a lump sum settlement of 5100,000, specifying that it included attorne>s' fees. Plaintiff rejected the offer, and at trial recovered judgment for S60,000. Plaintiffs then mo\ed for the attorneys' fees incurred both before and after the settlement offer. The trial court awarded fees incurred before the offer, but denied post-offer fees reason- ing that because plaintiffs recovered less than the offer amount, defendants were not liable for any costs incurred after their offer. That ruling rested on the proposition that in a case where "costs " included attorneys' fees, those "costs" as well as the ordinar\ kind were affected b>- a Rule 68 offer. Plaintiff appealed, arguing that the case invoked a conflict between Rule 68 and \1988. He contended that ,^1988 evinced a congressional polic\' fa\oring 377 Page 299 Remedies ci\il rights claimants, who would be discouraged if their right to attorneys' fees could be cut off by a Rule 68 offer. The court of appeals agreed, holding that Rule 68 "costs" did not include attorneys' fees: Plaintiffs' attorneys, the court [of Appeals] reasoned, would be forced to "think very hard" before rejecting even an inadequate offer, and would be deterred from bringing good faith actions because of the prospect of losing the right to attorney's fees if a settlement offer more favorable than the ultimate recover)' were rejected. The court concluded that "the legislators who enacted section 1988 would not have wanted its effectiveness blunted because of a little known rule of court." (105 S. Ct. at 3012.) The Supreme Court reversed. The Court held first that the lump sum offer made by the Marek defendants was an acceptable tactic: "If defendants are not allowed to make lump sum offers that would, if accepted, represent their total liability [including attorneys' fees), they would understandably be reluctant to make settlement offers." Second, the Court held that in cases where attorneys' fees would be awarded to successful plaintiffs, "costs" in Rule 68 included attorneys' fees, rejecting the argument that this construction of the Rule ig- nored a policy, implict in ^1988, favoring civil rights plaintiffs: Rule 68's policy of encouraging settlements is neutral, favoring neither plaintiffs nor defendants; it expresses a clear policy favoring settlement of all lawsuits. Civil rights plaintiffs — along with other plaintiffs — who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney's fees for services performed after the offer is rejected. But, since the Rule is neutral, many civil rights plaintiffs will benefit from the offers of settlement encouraged by Rule 68. Some plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered. And, even for those who would prevail at trial, settlement will provide them with compensation at an earlier date without the burdens, stress, and time of litigation. In short, settle- ments rather than litigation will serve the interests of plaintiffs as well as defendants. To be sure, application of Rule 68 will require plaintiffs to "think ver>' hard " about whether continued litigation is worthwhile; that is preciseK what Rule 68 contem- plates. 105 S. Ct. at 3018. NOTES AND PROBLEMS Marek and Rule 68 present several problems. To distinguish them consider the following events: January I, 1986: Archie sues Barbara, invoking a statute that provides for attorneys' fees to the prevailing plaintiff. /une J, J986; Barbara makes a Rule 68 .settlement offer of $10,000. By this time Archie's lawyer has run up fees of $4,500. Archie rejects the offer. June ], 1987: The case goes to trial, bv which point Archie's lawver has a fee bill of $15,000, and Barbara's lawyer has billed her for $18,000. Consider three possible outcomes of the trial: a) Archie gets a judgment for $50,000; 378 Remedies Page 299 b) Archie wins a judgment for $5,000; c) Barbara wins a judgment for the defendant. 1. We shall consider the first and last scenarios — more or less total victory or total defeat for Archie — in a moment. Focus now on the intermediate case, where Archie wins but wins less than the settlement offer. In that situation, Marek assumes, though it does not hold, that Barbara can recover from Archie the ordinary' "costs" incurred after June 1, 1986 — the date of the offer. But those "costs" do not include Barbara's attorneys' fees: Marek indicated that whether "costs" include such fees depends on whether a statute other than Rule 68 provided for the award of fees. Because the statute in Marek (and in the hypo- thetical) provided for costs to prevailing plaintiffs, rather to any prevailing party, Barbara cannot collect her own fees from Archie. Barbara need not, however, pay Archie more than the $4,500 in fees incurred before the Rule 68 offer. 2. Consider now scenario (a), in which Archie recovers more than the offer; according to Rule 68 and )il988 who owes what costs to whom? 3. Finally, what of total victory for Barbara? Does Rule 68 suggest she can recover her post-offer costs from Archie? Reconsider your response after reading Delta Airlines in the section on costs. Evans v. Jeff D. 106 S. Ct. 1531 (1986) Justice Stevens delivered the opinion of the Court. The Civil Rights Attorney's Fees Awards Act of 1976 (Fees Act), provides that "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee" in enumerated civil rights action. 90 Stat. 2641, 42 U.S.C. )il988. ... In this case, we consider the question whether attorney's fees must be assessed when the case has been settled by a consent decree granting prospec- tive relief to the plaintiff class but providing that the defendants shall not pay any part of the prevailing party's fees or costs. We hold that the District Court has the power, in its sound discretion, to refuse to award fees. I [The plaintiff class of emotionally and mentally handicapped children sued the State of Idaho, seeking injuncti\e orders that would improve the treatment of such children who were institutionalized. Johnson, the class's attorney was employed by the Legal Aid Society; his agreement with the class representatives contained no provision covering legal fees.] In March 1985, one week before trial, petitioners presented respondents with a new settlement proposal "offer[ing] virtually all of the injunctive relief [they] had sought in their complaint," but includ[ing] a provision for a waiver by respondents of any claim to fees or costs. Originally, this waiver was unaccept- able to the Idaho Legal Aid Society, which had instructed Johnson to reject any 379 Page 299 Remedies settlement offer conditioned upon a waiver of fees, but Johnson ultimately determined that ... he was "forced," by an offer giving his clients "the best result [they] could have gotten in this court or any other court," to waive his attorney's fees.' The District Court, however, evaluated the waiver in the context of the entire settlement and rejected the ethical underpinnings of John- son's argument. [The Ninth Circuit reversed.) . . . We now reverse. . . . Rule 23(e) wisely requires court approval of the terms of any settlement of a class action, but the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to require the parties to accept a settlement to which they have not agreed. . . . The question we must decide, therefore, is whether the District Court had a duty to reject the proposed settle- ment because it included a waiver of statutorily authorized attorney's fees. . . . Although respondents contend that Johnson, as counsel for the class, was faced with an "ethical dilemma" when petitioners offered him relief greater than that which he could reasonably have expected to obtain for his clients at trial (if only he would stipulate to a waiver of the statutory fee award), ... we do not believe that the "dilemma" was an "ethical" one in the sense that Johnson had to choose between conflicting duties under the prevailing norms of professional conduct. Plainly, Johnson had no ethical obligation to seek a statutory fee award. His ethical duty was to serve his clients loyally and compe- tently. Since the proposal to settle the merits was more favorable than the probable outcome of the trial, Johnson's decision to recommend acceptance was consistent with the highest standards of our profession. The District Court, therefore, correctly concluded that appro\al of the settlement involved no breach of ethics in this case. The defect, if any, in the negotiated fee waiver must be traced not to the rules of ethics but to the Fees Act. Following this tack, respondents argue that the statute must be construed to forbid a fee waiver that is the product of "coercion." They submit that a "coercive waiver" results when the defendant in a civil rights action (1) offers a settlement on the merits of equal or greater value than that which plaintiffs could reasonably expect to achieve at trial but (2) conditions the offer on a waiver of plaintiffs' statutory eligibility for at- torney's fees. Such an offer, they claim, exploits the ethical obligation of plaintiffs' counsel to recommend settlement in order to avoid defendant's statu- tory liability for its opponents' fees and costs. . . . 6. Johnson's oral presentation to the District Court reads in full as follows: In other words, an attorney like myself can be put in the position of cither negotiating for his client or negotiating for his attorney's fees, and I think that that is prett>' much the situation that occurred in this instance. 1 was forced, because of what 1 perceived to be a result favorable to the plaintiff class, a result that I didn't want to see jeopardized by a trial or by any other possible problems that might have occurred. And the result is the best result I could ha\e gotten in this court or any other court and it is really a fair and just result in any instance and what should have occurred years earlier and which in fact should have been the case all along. That result I didn't want to see disturbed on the basis that m\ attorney's fees would cause a problem and cause that result to be jeopardized. 380 Remedies Page 299 m The text of the Fees Act provides no support for the proposition that Congress intended to ban all fee waivers offered in connection with substan- tial relief on the merits. ' On the contrar)', the language of the Act, as well as its legislative history, indicates that Congress bestowed on the "prevailing party" (generally plaintiffs) a statutory eligibility for a discretionary award of attorney's fees in specified civil rights actions. It did not prevent the party from waiving this eligibility anymore than it legislated against assignment of this right to an attorney, such as effectively occurred here. . . . The statute and its legislative history nowhere suggest that Congress intended to forbid all waivers of attorney's fees — even those insisted upon by a civil rights plaintiff in exchange for some other relief to which he is indisputably not entitled — anymore than it intended to bar a concession on damages to secure broader injunctive relief. . . . In fact, we believe that a general proscription against negotiated waiver of attorney's fees in exchange for a settlement on the merits would itself impede vindication of civil rights, at least in some cases, by reducing the attractiveness of settlement. Of particular relevance in this regard is our recent decision in Marek v. Chesny, 473 U.S. — (1985). In that case, which admittedly was not a class action, ... we specifically considered and rejected the contention that civil rights actions should be treated differently from other civil actions for purposes of settlement. As the Chief Justice explained in his opinion for the Court, the settlement of litigation provides benefits for civil rights plaintiffs as well as defendants and is consistent with the purposes of the Fees Act: . . .Some plaintiffs will receive compensation in settlement where, on trial, they might not have recovered, or would have recovered less than what was offered. And, even for those who wold prevail at trial, settlement will provide them with compensation at an earlier date without the burdens, stress, and time of litigation. In short, settlements rather than litigation will serve the interests of plaintiffs as well as defendants. To promote both settlement and civil rights, we implicitly acknowledged in Marek v. Chesny the possibility of a tradeoff between merits relief and at- torney's fees when we upheld the defendant's lump-sum offer to settle the entire civil rights action, including any liability for fees and costs. . . . Most defendants are unlikely to settle unless the cost of the predicted judg- ment, discounted by its probability, plus the transaction costs of further lihga- 17. The operative language of the Fees Act provides, in its entirety: In any action or proceeding to enforce a provision of section 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of. a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964. the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. 90 Stat. 2641. 42 US.C. )il988. 381 Page 299 Remedies tion. arc greater than the cost of the settlement package. If fee waivers cannot be negotiated, the settlement package must either contain an attorney's fee component of potentially large and typically uncertain magnitude, or else the parties must agree to have the fee fixed by the court. Although either of these alternatives may well be acceptable in man)- cases, there surely is a significant number in which neither alternatixe uill be as satisfactory as a decision to try the entire case. The adverse impact of removing attorney's fees and costs from bargaining might be tolerable if the uncertainty introduced into settlement negotiations were small. But it is not. The defendants' potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits. This proposition is most dramatically illustrated bv the fee awards of district courts in actions seeking onl\' monetary relief--* ..." . . . We conclude, therefore that it is not necessary to construe the Fees Act as embodying a general rule prohibiting settlements conditioned on the waiver of fees in order to be faithful to the purposes of that Act. IV The question remains w hether the District Court abused its discretion in this case by approving a settlement which included a complete fee waiver. As note earlier. Rule 23(e) wisely requires court approval of the terms of any settlement of a class action. The potential conflict among members of the class — in this case, for example, the possible conflict between children primariK' interested in better educational programs and those primarily interested in improved health care — fully justifies the requirement of court approval. The Court of Appeals, respondents, and various amici supporting their posi- tion, however, suggest that the court's authority to pass on settlements, typically invoked to ensure fair treatment of class members, must be exercised in accor- dance with the Fees Act to promote the availability of attorneys in civil rights cases. . . . In light of the record, respondents must — to sustain the judgment in their favor — confront the District Court's finding that the extensive structural relief they obtained constituted an adequate quid pro quo for their waiver of attorney's fees. . . . 24. Sec e.g., Cih- of Riverside V. Rivera. 76? F. 2d 1580, 1581-158> (C.A.Q 1985) (Citv- ordered to pay victorious civil rights plaintiffs $245,456.25 following a trial in which they recovered a total of $33,550 in damages), cert, granted, 474 L'.S. — (1985); Cunningham \. City of McKecsport. 75> F.2d 262, 269 (C.A.5 1985) (City ordered to pay some $35,000 in attorney's fees in a case in which judgment for the plaintiff was entered in the amount of $17,000); Copeland v. Marshall. 641 F.2d 880. 891 (C..\.D.C. 1980) (en banc) ($160,000 attornev's fees awarded for obtaining $33,000 judgment); Skoda v. Fontani. 646 F.2d 1193. 1194 (C..^."), on remand. 519 F. Supp. 309, 310 (N.D. 111. 1981) ($6,086. 12 attorney's fees awarded to obtain $1 recovery). Cf Marek v. Chesny, 473 U.S., at — (slip op. 5) ($171,692.47 in claimed attorney's fees and costs to dbtam $60,000 damages judgment). 382 Remedies Page 299 What the outcome of this settlement illustrates is that the Fees Act has gi\en the victims of ci\il rights violations a powerful weapon that improves their ability to emplos counsel, to obtain access to the courts, and thereafter to vindicate their rights by means of settlement or trial. For aught that appears, it was the "coercive" effect of respondents' statutor\' right to seek a fee award that motivated petitioners' exceptionally generous offer. Whether this weapon might be even more powerful if fee \\ai\ers were prohibited in cases like this is another question,''' but it is in any e\ent a question that Congress is best equipped to answer. Thus far, the Legislature has not commanded that fees be paid whenever a case is settled. Unless it issues such a command, we shall rely primarily on the sound discretion of the district courts to appraise the reason- ableness of particular class-action settlements on a case-by-case basis, in the light of all the relevant circumstances. In this case, the District Court did not abuse its discretion in upholding a fee wai\er which secured broad injunctive relief, relief greater than that which plaintiffs could reasonably ha\e expected to achieve at trial. The judgment of the Court of Appeals is reversed. NOTES AND PROBLEMS 1. Unlike Marek, Jeff D. did not invoke Rule 68; the sanctioning provisions of Rule 68 take effect only if the case goes to judgment, and JeffD. settled out of court. But out of court settlements are not ordinarily subject to judical scrutiny, much less to full-scale review by the U.S. Supreme Court; what made this one different? 2. The Jeff D. opinion suggests that Johnson, the plaintiffs' lawyer, found himself in a dilemma because his clients had not instructed him to refuse any settlement offers requiring a wai\er of fees. If that suggestion is the whole stor)', the case is trivial: after reading JeffD., Legal Aid attorneys will simply ask their clients to sign a standard form instructing the lawyer to refuse all settlement offers that do not provide for attorneys' fees. But is it that simple? First, put yourself in Johnson's shoes even after such an agreement with the client. Assume he believes, on one hand, that the settle- ment (fees aside) is as good a job as he can do for the handicapped children: if the case went to (a long and probably difficult) trial he might at best get the ^4. We are cognizant of the possibilit\ that decisions by individual chents to bargain away fee awards may, in the aggregate and in the long run. diminish lawyers' expectations of statuton. fees in civil rights cases If this occurred, the pool of lawyers wilhng to represent plaintiffs in such cases might shrink, constricting the "effechve access to the judicial process" for persons with civil rights grievances which the Fees .'\ct was intended to provide, H,R. Rep. No. 94-1558. p. 1 (1976). That the "ty ranny of small decision " may operate in this fashion is not to say that there is any reason or documentation to support such a concern at the present time. Comment on this issue is therefore premature at this juncture. We believe, however, that as a practical matter the likelihood of this circumstance arising is remote. See Moore v. National Assn. of Securities Dealers, Inc.. 246 U.S. App. D.C., at — . n. 1, 762 F.2d, at 1112, n. 1 (Wald, J., concurring in judgment). 383 Page 299 Remedies same result the state is now offering him "for free. " At worst, he might get nothing. On the other hand, he realizes that Legal Aid could do much more for the other clients with the fees he might possibly receive if he goes to trial. Is he free, by refusing to accept the settlement offer, to trade off the interests of his present clients against those of future ones? Why? Can he explain the situation to his clients in a way that fully reveals what he's asking but still puts his request in a good light? Page 299. After 3. Interest On Judgments, add: 4. Costs Although attorney's fees are not ordinarily awarded to the prevailing party, costs are under the authority of F.R.C.P. 54(d): "Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court." Although the district courts may include items other than those prescribed by statute in "costs," their discretion to do so should be exercised sparingly. The controlling statute is 28 U.S. C. S1920: S1920. Taxation of costs. A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. $1923]. Costs are not included in the calculation of damages for purposes of satisfying the $10,000 jurisdictional requirement, 28 U.S.C. Jin32(a). and costs may be denied to or assessed against a plaintiff who claims $10,000 in damages but is adjudged to be entitled to less than that amount. 28 U.S.C. Ji 1332(a). Sometimes the prospect of transferring costs to one's opponent is used as an inducement toward favored behavior. For example, F.R.C.P. 68 awards cer- tains costs in some cases involving a rejected offer of settlement. The Rule was recently interpreted in Delta Airlines, hic. v. August, 450 U.S. 346(1981), in which plaintiff had sought approximately $20,000 in back pay after being discharged from her flight attendant position, allegedly because of racial dis- crimination. The defendant offered her a $450 settlement, which she rejected. The case was tried on the merits and plaintiff lost. Defendant then attempted to 384 Remedies Page 299 collect attorneys' fees on the basis of its victory and Rule 68. The district court and court of appeals denied attorneys' fees on the grounds that the airline's offer had not been made in good faith. The majority purported not to reach that issue, holding instead that Rule 68 applies only when the plaintiff wins a judgment for (a) less than the defendant offered, and (b) more than $0. Here, plaintiff had lost on the merits and therefore did not satisfy the conditions of the Rule. The requirement that the plaintiff win more than $0 to trigger the Rule was based upon the wording of the rule ("If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer") and the fear that any other reading would invite bad-faith extremely low offers by defendants hoping to collect attorneys' fees when they won on the merits. A vigorous dissent argued that it made no sense to interpret the Rule to allow costs against a plaintiff who had won something but to deny them against a plaintiff who had won nothing. The dissent would ha\e interpreted "costs" in Rule 68 to exclude attorneys' fees, however — as it would in most cases — even though August was a civil rights case, and in civil rights cases the term "costs" is often defined by statute to include attorneys' fees. 385 JOINDER OF CLAIMS AND PARTIES VI E. Class Actions Page 537. Before 4. Federal Jurisdiction, add: Phillips Petroleum v. Shutts 105 S. Ct. 2965 (1985) Rehnquist, J. [Phillips produces and sells natural gas. During the 1970s it acquired some of this gas by leasing gas-producing lands from others, paying royalties on the gas it extracted from each lease. The royalt\' was based on the price for which the gas was finally sold, and increases in the selling price required approval by a federal agency. This dispute arose because while regulatory approval was pend- ing, Phillips sold the gas at higher prices, but paid royalties only on the lower, already-approved prices paying the incremental royalties only when and if the increase met with regulatory approval. Phillips's defense of this practice rested on the difficulty of obtaining rebates from the royalt)' owners if the price increases were not approved. Plaintiff Irl Shutts filed a suit on behalf of himself and 33,000 small royalty owners, claiming that they were entitled to interest on the money during the period when Phillips was awaiting approval of its price increases. The average claim of the class members was $100. Suit was filed in Kansas state court, which certified the action under a state provision substantially resembling Fed- eral Rule of Civil Procedure 23.] After the class was certified respondents provided each class member w ith notice through first-class mail. The notice described the action and informed each class member that he could appear in person or by counsel; otherwise each member would be represented by Shutts and the Andersons, the named plaintiffs. The notices also stated that class members would be included in the class and bound by the judgment unless they "opted out" of the lawsuit by executing and returning a "request for exclusion" that was included with the notice. The final class as certified contained 28, 100 members; 3,400 had "opted out" of the class b\ return- ing the request for exclusion, and notice could not be delivered to another 1,500 387 Page 537 Joinder of Claims and Parties members, who were also excluded. Less than 1,000 of the class members resided in Kansas. Only a miniscule amount, approximately one quarter of one percent, of the gas leases involved in the lawsuit were on Kansas land. [After some proce- dural skirmishing over the class action issue the case went to trial. On the merits the court held "as a matter of Kansas equity law" that Phillips owed the royalty owners interest and entered judgment for the plaintiff class.] Petitioner raised two principal claims in its appeal to the Supreme Court of Kansas. It first asserted that the Kansas trial court did not possess personal jurisdiction over absent plaintiff class members as required by International Shoe Co. V. Washington and similar cases. Related to this first claim was petitioner's contention that the "opt-out" notice to absent class members, which forced them to return the request for exclusion in order to avoid the suit, was insufficient to bind class members who were not residents of Kansas or who did not possess "minimum contacts" with Kansas. Second, petitioner claimed that Kansas courts could not apply Kansas law to every claim in the dispute. The trial court should have looked to the laws of each State where the leases were located to determine, on the basis of conflict of laws principles, whether interest on the suspended royalties was recoverable, and at what rate. The Supreme Court of Kansas held that the entire cause of action was maintainable under the Kansas class-action statute and the court rejected both of petitioner's claims. . . . n Reduced to its essentials, petitioner's argument is that unless out-of-state plaintiffs affirmatively consent, the Kansas courts may not exert jurisdiction over their claims. Petitioner claims that failure to execute and return the "request for exclusion" provided with the class notice cannot constitute consent of the out-of-state plaintiffs; thus Kansas courts may exercise jurisdiction over these plaintiffs only if the plaintiffs possess the sufficient "minimum contacts" with Kansas as that term is used in cases involving personal jurisdiction over out-of-state defendants. E.g., International Shoe Co. v. Washington, Shaffer v. Heitner, World-Wide Volkswagen Corp. v. Woodson. Since Kansas had no preiitigation contact with many of the plaintiffs and leases involved, petitioner claims that Kansas has exceeded its jurisdictional reach and thereby violated the due process rights of the absent plaintiffs. [Justice Rehnquist summarized International Shoe.] The purpose of this test, of course, is to protect a defendant from the travail of defending in a distant forum, unless the defendant's contacts with the forum make it just to force him to defend there. As we explained in Woodson, supra, the defendant's contacts should be such that "he should reasonably anticipate being haled" into the forum. In Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, we explained that the requirement that a court have personal jurisdiction comes from the Due Process Clause's protection of the defendant's personal liberty interest, and said that the requirement "represents a 388 Joinder of Claims and Parties Page 537 restriction on judicial power not as a matter of so\ereignh'. but as a matter of individual liberts." Although the cases like Shaffer and Woodson which petitioner relies on for a minimum contacts requirement all dealt with out-of-state defendants or parties in the procedural posture of a defendant, petitioner claims that the same analysis must apply to absent class-action plaintiffs. In this regard petitioner correctly points out that a chose in action is a constitutionally recognized property interest possessed by each of the plaintiffs. MuUane v. Central Han- over Bank & Trust Co. An adverse judgment by Kansas courts in this case may extinguish the chose in action forever through res judicata. Such an adverse judgment, petitioner claims, would be e\er\- bit as onerous to an absent plain- tiff as an adverse judgment on the merits would be to a defendant. Thus, the same due process protections should apply to absent plaintiffs: Kansas should not be able to exert jurisdiction over the plaintiffs claims unless the plaintiffs have sufficient minimum contacts with Kansas. We think petitioner's premise is in error. The burdens placed by a State upon an absent class-action plaintiff are not of the same order or magnitude as those it places upon an absent defendant. An out-of-state defendant summoned by a plaintiff is faced with the full powers of the forum State to render judg- ment against it. The defendant must generally hire counsel and tra\el to the forum to defend itself from the plaintiffs claim, or suffer a default judgment. The defendant may be forced to participate in extended and often costK discov- er\'. and will be forced to respond in damages or to comply with some other form of remedy imposed by the court should it lose the suit. The defendant may also face liability for court costs and attorney's fees. These burdens are substantial, and the minimum contacts requirement of the Due Process Clause prevents the forum State from unfairly imposing them upon the defendant. A class-action plaintiff, howe\er, is in quite a different posture. The Court noted this difference in Hansberry v. Lee which explained that a "class" or "representative" suit was an exception to the rule that one could not be bound by judgment in personam unless one was made fully a party in the traditional sense. Ibid., citing Pennoyer v. Neff. As the Court pointed out in Hansberry, the class action was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the litigation was too great to permit joinder. The absent parties would be bound by the decree so long as the named parties adequately represented the absent class and the prosecution of the litigation was uithin the common interest.' Modern plaintiff class actions follow the same goals, permitting litigation of a suit invoking common questions when there are too manv plaintiffs for proper joinder. Class actions also may permit the plaintiffs to pool claims which would 1. The holding in Hansbem', of course, was that petitioners in that case had not a sufficient common interest with the parties to a prior lawsuit such that a decree against those parties in the prior suit would bind the petitioners. But in the present case there is no question that the named plainhffs adequately represent the class, and that all members of the class have the same interest in enforcing their claims against the defendant. 389 Page 537 Joinder of Claims and Parties be uneconomical to litigate indi\iduall\. For example, this lawsuit involves claims averaging about $100 per plaintiff; most of the plaintiffs would have no realistic day in court if a class action were not available. In sharp contrast to the predicament of a defendant haled into an out-of-state forum, the plaintiffs in this suit were not haled anywhere to defend themseKes upon pain of a default judgment. As commentators have noted, from the plaintiffs' point of view a class action resembles a "quasi-administrative pro- ceeding, conducted by the judge. " A plaintiff class in Kansas and numerous other jurisdictions cannot first be certified unless the judge, with the aid of the named plaintiffs and defendant, conducts an inquiry into the common nature of the named plaintiffs and the absent plaintiffs' claims, the adequacy of representation, the jurisdiction pos- sessed over the class, and any other matters that will bear upon proper represen- tation of the absent plaintiffs' interest. See, e.g., Kan. Stat. Ann. S60-225 (183); Fed. Rule Civ. Proc. 23. Unlike a defendant in a civil suit, a class-action plaintiff is not required to fend for himself. See Kan. Stat. Ann. !i60-223(d) (1983). The court and named plaintiffs protect his interest. Indeed, the class- action defendant itself has a great interest in ensuring that the absent plaintiffs claims are properly before the forum. In this case, for example, the defendant sought to avoid class certification by alleging that the absent plaintiffs would not be adequately represented and were not amenable to jurisdiction. The concern of the typical class-action rules for the absent plaintiffs is mani- fested in other ways. Most jurisdictions, including Kansas, require that a class action, once certified, may not be dismissed or compromised without the approval of the court. In many jurisdictions such as Kansas the court may amend the pleadings to ensure that all sections of the class are represented adequately. Kan. Stat. Ann. !;60-223(d) (1983); see also e.g., Fed. Rule Civ. Proc. 23(d). Besides this continuing solicitude for their rights, absent plaintiff class mem- bers are not subject to other burdens imposed upon defendants. They need not hire counsel or appear. They are almost ne\er subject to counterclaims or cross-claims, or liability for fees or costs." Absent plaintiff class members are not subject to coercive or punitive remedies. Nor will an adverse judgment typically bind an absent plaintiff for any damages, although a valid adverse judgment may extinguish any of the plaintiffs claim which was litigated. Unlike a defendant in a normal ci\il suit, an absent class-action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protec- tion. In most class actions an absent plaintiff is provided at least with an opportunity to "opt out" of the class, and if he takes advantage of that opportu- 2. Petitioner places emphasis on the fact that absent class members might be subiect to discov- ery, counterclaims, cross-claims or court costs. Petitioner cites no cases involving any such nnposi- tlon upon plaintiffs, however We are convinced that such burdens are rarely imposed upon plaintiff class members, and that the disposition of these issues is best left to a case which presents them in a more concrete wa\ . 390 loinder of Claims and Parties Page 537 nity he is removed from the htigation entirely. This was true of the Kansas proceedings in this case. Petitioner contends, however, that the "opt out" procedure provided by Kan- sas is not good enough, and that an "opt in" procedure is required to satisfy the Due Process Clause of the Fourteenth Amendment. Insofar as plaintiffs who have no minimum contacts with the forum State are concerned, an "opt in" provision would require that each class member affirmatively consent to his inclusion within the class. Because States place fewer burdens upon absent class plaintiffs than they do upon absent defendants in nonclass suits, the Due Process Clause need not and does not afford the former as much protection from state-court jurisdic- tion as it does the latter. The Fourteenth Amendment does protect "persons," not "defendants," however, so absent plaintiffs as well as absent defendants are entitled to some protection from the jurisdiction of a forum State which seeks to adjudicate their claims. In this case we hold that a forum State may exercise jurisdiction over the claim of an absent class-action plaintiff, even though that plaintiff my not possess the minimum contacts with the forum which would support personal jurisdiction over a defendant. If the forum State wishes to bind an absent plaintiff concerning a claim for money dam- ages or similar relief at law.' it must provide minimal procedural due process protection. The plaintiff must receive notice plus an opportunit)' to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable, "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity' to present their objections." Mullane. The notice should describe the action and the plaintiffs' rights in it. Additionally, we hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an "opt out" or "request for exclusion" form to the court. Finally, the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members. . . . We think that the procedure followed by Kansas, where a fully descriptive notice is sent first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process. . . . In this case over 3,400 members of the potential class did "opt out," which belies the contention that "opt out" procedures result in guaranteed jurisdiction by inertia. Another 1,500 were excluded because the notice and "opt out" form was undeliverable. We think that such results show that the "opt out" proce- dure provided by Kansas is by no means pro forma, and that the Constitution does not require more to protect what must be the somewhat rare species of 3 Our holding today is limited to those class actions which seek to bind known plaintiffs concerning claims wholly or predominately for money judgments. We intimate no view concern- ing other types of class action lawsuits, such as those seeking equitable relief. Nor. of course, does our discussion of personal jurisdiction address class actions where the jurisdiction is asserted against a defendant class. 391 Page 537 Joinder of Claims and Parties class meniber who is Liiiwilliiig to execute an "opt out" form, but v\hose claim is nonetheless so important that he cannot be presumed to consent to being a member of the class by his failure to do so. Petitioner's "opt in" requirement would require the invalidation of scores of state statutes and of the class-action provision of the Federal Rules of Civil Procedure, and for the reasons stated we do not think that the Constitution requires the State to sacrifice the obvious advantages in judicial efficiency resulting from the "opt out" approach for the protection of the rara avis portra\ed by petitioner. We therefore hold that the protection afforded the plaintiff class members by the Kansas statute satisfies the Due Process Clause. I'he interests of the absent plaintiffs are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the court. Both the Kansas trial court and the Supreme Court of Kansas held that the class. received adequate representation, and no party disputes that conclusion here. We conclude that the Kansas court properly asserted personal jurisdiction over the absent plaintiffs and their claims against petitioner. ni The Kansas courts applied Kansas contract and Kansas equity law to every claim in this case, notwithstanding that o\er 99 percent of the gas leases and some 97 percent of the plaintiffs in the case had no apparent connection to the State of Kansas except for this lawsuit. Petitioner protested that the Kansas courts should apply the laws of the States where the leases were located, or at least apply Texas and Oklahoma law because so many of the leases came from those States. The Kansas courts disregarded this contention and found peti- tioner liable for interest on the suspended royalties as a matter of Kansas law, and set the interest rates under Kansas equit\' principles. . . . We make no effort to determine for ourselves which law must apply to the various transactions involved in this lawsuit, and we reaffirm our observation in Allstate that in many situations a state court may be free to apply one of several choices of law. But the constitutional limitations laid down in cases such as Allstate and Home Insurance Co. v. Dick, supra, must be respected even in a nationwide class action. We therefore affirm the judgment of the Supreme Court of Kansas insofar as it upheld the jurisdiction of the Kansas courts over the plaintiff class members in this case, and reverse its judgment insofar as it held that Kansas law was applicable to all of the transactions which it sought to adjudicate. We remand the case to that Court for further proceedings not inconsistent with this opinion. Justice PowKLL took no part in the decision of this case. Justice Stk.vkns [concurred with the majorit)' opinion on the class action issue and dissented onl\' on the choice of law question.) 392 Joinder of Claims and Parties Page 537 NOTES AND PROBLEMS 1. For the civil procedure student, Phillips not only extends the due process themes of Hansberry v. Lee but recapitulates much of the material on personal jurisdiction. In particular, note the opinion's emphatic rejection of the idea that the constitutional dimension of due process involves anything other than individual liberty. That rejection is crucial to the holding; without it, the waiver implied by failure to opt out of the class would not answer objections based not on personal inconvenience but on state sovereignty. Personal juris- diction opinions since Pennoyer v. Neff have sporadically suggested that state sovereignty plays some element in personal jurisdiction; World-Wide Volkswa- gen V. Woodson (casebook p. 86) was the most recent case to reiterate this point. Because the holding of Phillips rests in part on the rejection of state sovereignty as an element of personal jurisdiction, one can therefore conclude that statements such as those in World-Wide should be rare in the future. That should make analysis of personal jurisdiction problems in the ordinary case a bit easier, but what about extraordinary cases? Several statutes give the federal courts nationwide personal jurisdiction in certain kinds of cases; for instance, 28 U.S.C. $2361 does so in some interpleader actions. The usual justification for such nationwide personal jurisdiction bases itself on sovereignty: The federal government in some sense "controls" the whole country and therefore, so far as the Constitution is concerned, can require defendants to answer wherever it wants. But if sovereignty is not part of personal jurisdiction, that justification no longer holds water. Did Phillips cast doubt on the constitutionality of !i2361? If not, it must be because there's some other justification for nationwide personal jurisdiction in such cases. Is there? 2. Beyond the question of personal jurisdiction, Phillips has several implica- tions for our understanding of due process. At the simplest level, it seems to constitutionalize the notice provisions of Rule 23(c)(2), holding that they are required by the due process clause. But is that an accurate reading of the case? Does Phillips hold that all the provisions of Rule 23(c)(2) are constitutionally required, or just that they are at least as much as the Constitution requires? To illustrate, imagine that Kansas had sent mail notice to a random sample of the 33,000 class members and taken out ads on radio and television stations where large numbers of them lived; would that have satisfied the requirements of due process? Another version of the same question would have arisen if Kansas, instead of excluding from the class the 1500 royalty owners who could not be located, had included them. Would these unnotified absentees have been bound by the resulting judgment? Phillips suggests not, but recall the facts of Mullane v. Central Hanover Bank & Trust (casebook p. 165). In that case the court held that a number of unnotified trust beneficiaries would be bound by a judgment because they had been adequately represented by those who were notified. If Mullane is good law, then notice is not required to those who can't easily be located. But is that part of Mullane still good law after Phillips? 393 Page 537 Joinder of Claims and Parties 3. Phillips drops a footnote indicating that its decision reaches only class actions involving primariK' or exclusively money damages, i.e., Rule 23(bX3) actions. Why this limitation? There seem to be at least two possibilities: Either the court is just exercising traditional common law restraint in not deciding cases not before it, or there is something special about the nature of injunctive relief that makes the requirement of notice and an opportunit>' to opt out less important or significant than in other cases. If it's the latter, is that the same impulse that led the Rules' drafters to treat 23(b)(3) cases differently from the other two sorts? Consider this question when you read Eisen v. Carlisle & Jacquelin (casebook p. 542). 4. Phillips has special importance because the federal courts will not, as a practical matter, entertain many nationwide class actions unless the suits arise under federal law. One reading of Phillips is therefore that it permits state courts to hear the kind of cases — invoking nationwide classes — that one might expect federal courts to hear were they not prevented from doing so by the set of jurisdictional decisions considered in the next section. Page 551: The notice in note 6 is found in Katz v. Carte Blanche Corp., 53 F. R.D. 539, 547-548 (W.D. Pa. 1971). 394 DISCOVERY VII Page 561. Before A. Ground Rules for Discovery, add: The text suggests not a little disquietude about present day discovery. In 1983, in an effort to "do something," the Supreme Court promulgated a number of amendments to the discovery rules. In essence, the new rules were designed to give the courts more authority to directly control discovery, and to impose sanctions for violations of the rules. In part, these amendments reflect a growing awareness that it is simply impossible to deal with discover,' problems through a set of generalized rules; the court must have flexibility to alter and limit the rules in appropriate cases. Moreover, the amendments reflect the philosophy that attorneys have some responsibility for making discovery work well, and should be subject to sanction when they abdicate this responsibility. Rules 26(b) (1) and 26(g) reflect these changes. In brief. Rule 26(b)(1) grants the court the power to limit discovery if (a) it is cumulative or duplicative, or can be obtained in a less burdensome or convenient manner; (b) the party seeking the discovery had ample opportunity to obtain the information; or (c) the discovery is unduly burdensome or expensive in light of the amounts, parties, and issues in the case. Rule 26(g) requires discovery requests and objections to be signed by an attorney. Such signing constitutes a certification that the request or objection is consistent with existing law or a good faith extension thereof; is not interposed for delay, harassment, or other improper purpose; and is not unreasonable, burdensome, or expensive in light of the circumstances of the case and the discovery that already has taken place. The court is authorized to impose sanctions, including awards of attorneys' fees, for violations. It is too early to say whether these rules will be effective in controlling abuses. We would, however, issue some cautionary notes. Although Rule 1 1 has a similar certification requirement for pleadings, there have been rather persistent complaints about the pleading of frivolous claims, and calls for sub- stantiallv tightened pleading requirements. Further, although the courts have long had the power to mnpose sanctions for clear violations of the discovery rules, the> have been notoriously reluctant to do so. See page 613, note I of the casebook. Whether courts will impose sanctions for violations of these more amorphous rules is problematical. But time will tell. The amendments raise other questions as well. For one, they seem to em- 395 Page 561 Discovery power the judge to substitute his or her own ideas for those of the trial lawyer about what is necessary for effective preparation. This may be particularly troublesome at a time when district judges are increasingly delegating discovery and other pre-trial matters to magistrates. For another, it is extremely difficult to get a true flavor of the course of discovery, and possible abuses or violations of the rules, when a single discovery dispute is presented for judicial action. Such single instances taken in isolation — which is the way the judge considers them — may not seem all that bad. The single dispute presented for resolution often should be considered in the context of the overall process, yet the court usually will have little or no awareness of this history. Query whether anything short of ongoing judicial supervision can really do very much good. 3% PRE-TRIAL DISPOSITION VIII A. Summary Judgment Page 629. Add a new note 4A: 4A. Four years after Butz. the Supreme Court apparently recognized the problem. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court noted that it would rarely be possible to grant summary judgment in actions against govern- ment officials if the test was based on subjective good faith, and proposed an objective good faith test instead. The Court explained: Decisions of this Court have established that the "good faith" defense has both an "objective" and a "subjective" aspect. The objective element involves a presump- tive knowledge of and respect for "basic, unquestioned constitutional rights." The subjective component refers to "permissible intentions." Characteristically the Court has defined these elements by identifying the circumstances in which qualified immunitv' would not be available. Referring both to the objective and subjective elements, we have held that qualified immunitv would be defeated if an official "knew or reasonably should have known that the action he took within his sphere of official responsibilih would \iolate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a depriva- tion of constitutional rights or other injury. . . ." The subjective element of the good-faith defense frequently has pro\ed incom- patible with our admonition in Butz that insubstantial claims should not proceed to trial. Rule 56 of the Federal Rules of Civil Procedure pro\ides that disputed questions of fact ordinarily may not be decided on motions for summary judg- ment. And an official's subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jur>'. In the context of Butz's attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibi- tion of discretionarv' action, and deterrence of able people from public service. There are special costs to "subjective" inquiries of this kind. Immunitv generally is available only to officials performing discretionary functions. In contrast with the thought processes accompanying "ministerial" tasks, the judgments surround- ing discretionary action almost inevitably are influenced by the decisionmaker's experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarelv can be decided by summary judgment. Yet they also 397 Page 629 Pre-Trial Disposition frame a background in which there often is no clear end to the relevant evidence. Judicial inquir\' into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official's profes- sional colleagues. Inquiries of this kind can be peculiarh disruptive of effective government. Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject go\crnment officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions gener- ally are shielded from liabilitv' for ci\il damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of gov- ernment and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriateK ma\ determine, not only the currcntK applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal develop- ments, nor could he fairly be said to "know " that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is re- solved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. 398 TRIALS IX B. Right to Jury Trial 2. Constitutional Standard Page 672. After note 6 add: 7. Amendments to the pleadings can also raise questions regarding the right to jury trial in a merged procedure. Thus, assume plaintiff seeks specific perfor- mance of a contract, and then amends the complaint to seek damages for past breaches or as an alternative remedy. Or, assume plaintiff sues for breach of contract number 1 and \vai\es a right to jury trial, then amends the complaint to seek damages for breach of contract number 2. Does plaintiff ha\e a right to jurv trial in either case? See In re Holland, — F.2d — (1 1th Cir. 1982), writ of mandamus denied, 458 U.S. 1104 (1982). C. Juror Selection Page 696. Delete Borkoski v. Yost. Substitute: McDonough Power Equipment, Inc. v. Greenwood 104 S. Ct. 845 Justice Rehnquist delivered the opinion of the Court. Respondents, Billy Greenwood and his parents, sued petitioner McDonough Power Equipment, Incorporated to recover damages sustained by Billy when his feet came in contact with the blades of a riding lawn mower manufactured by petitioner. The United States District Court for the District of Kansas entered judgment for petitioner upon a jury verdict and denied respondents' motion for new trial. On appeal, however, the Court of Appeals for the Tenth Circuit re\ersed the judgment of the District Court and ordered a new trial. It held that the failure of a juror to respond affirmatively to a question on voir dire seeking to elicit information about previous injuries to members of the luror's immediate family had "prejudiced the Creenwoods" right of peremptory challenge," and that a nev\ trial was necessar\- to cure this error. We granted 399 Page 696 Trials certiorari, and now hold that respondents are not entitled to a new trial unless the juror's failure to disclose denied respondents their right to an impartial jury. During the voir dire prior to the empaneling of the six-member jury, respon- dents' attorney asked prospective jurors the following question: Now, how many of you have yourself or any members of your immediate family sustained any severe injury, not necessarily as severe as Billy, but sustained any injuries whether it was an accident at home, or on the farm or at work that resulted in any disability or prolonged pain and suffering, that is you or any members of your immediate family? Ronald Payton, who eventually became a juror, did not respond to this ques- tion, which was addressed to the panel as whole. After a trial which extended over a three-week period, the jury found for petitioner McDonough.' Four days after judgment was entered for petitioner, respondents moved under local Rule 23A for permission to approach the members of the jury. In support of their motion respondents asserted that they were "of information and belief that juror Payton's son may have been injured at one time, a fact which had not been revealed during voir dire. I'he District Court ruled that respondents had failed to show just cause to approach the jur\'. Undeterred, the next day respondents filed a second mohon for permission to approach the jur\', attaching an affidavit from respondent John Greenwood," who asserted that in the course of his employment as a Navy recruiter, he had reviewed the enlistment application of juror Payton's son. In that application Payton's son stated that he had been injured in the explosion of a truck tire. The District Court granted respondents permission to approach juror Payton regarding the injuries allegedly sustained by his son. The District Court di- rected that the inquiry should be brief and polite and made in a manner convenient to the juror. The District Court noted that it was not "overly impressed with significance of this particular situation. " No proxision was made to record the inquiry of juror Payton. On the same da}' that the District Court granted respondents permission to approach juror Payton, respondents moved for a new trial, asserting 18 grounds in justification, including the District Court's alleged error in denying respon- dents' motion to approach the jur\'. This was the only instance when respon- dents even tangentially referred the District Court to the juror's failure to respond as a ground for a new trial. ShortK after the parties placed a telephone 1 .Although respondents sued only petitioner McDonough. under Kansas law, which applied in this diversit) action, the jury was permitted to consider the relative fault of three non-defendants: )eff Morris, a next-door neighbor who was operating the lawn mower in\ol\ed in the accident, Jeff's father, and Billy's mother. The jury assessed Billy's damages in the amount of $?75.000, and found Jeff Morris 20 percent at fault. Jeffs father 45 percent at fault, and Billy's mother 35 percent at fault. The jun determined that petitioner McDonough 's percentage of fault was zero. 2. It is not clear from the opinion of the Court of .\ppcals whether the information stated in Greenwood's affidavit was Icnown to respondents or their counsel at the time of the voir dire examination. If it were, of course, respondents would be barred from later challenging the compo- sition of the jury when they had chosen not to interrogate juror Payton further upon receiving an answer which they thought to be factually incorrect 400 Trials Page 696 conference call to juror Paxton, the District Court denied respondents" motion for a new trial, finding that the "matter was fairly and thoroughly tried and that the jur\'s \erdict was a just one, well-supported by the e\idence. " The District Court was ne\er informed of the results of the examination of juror Payton, nor did respondents e\er directK assert before the District Court that juror Payton's non-disclosure warranted a new trial. On appeal, the Court of Appeals proceeded directK to the merits of respon- dents' claim that juror Payton's silence had prejudiced their right to exercise peremptory challenges, rather than remanding the case back to the District Court for a hearing. ' The Court of Appeals simply recited the recollections of counsel for each parh' of their conference telephone call with juror Payton contained in their appellate briefs, stating that the "unrexealed information " indicated probable bias "because it re\ealed a particularly narrow concept of what constitutes a serious injurv. " The Court of Appeals assumed that juror Payton had answered in good faith, but stated: Good faith, however, is irrelevant to our inquin. If an average prospective juror would have disclosed the information, and that information would have been significant and cogent evidence of the juror's probable bias, a new trial is required to rectif> the failure to disclose it. This Court has long held that " '[a litigant] is entitled to a fair trial but not a perfect one,' for there are no perfect trials." Brown w United States. 411 U.S. 223, 231-232 ( 1973). Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for societ)' which pa\s the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing case load. Even this straightforward products liability suit extended over a three-week period. X -Mthough neither part\ challenges the propriet> of the Court of .\ppeals ha\ing disposed of the question on the merits, we be!ie\e that the proper resolution of the legal issue should be made by the District Court. Nevertheless, we address the issue in order to correct the legal standard the District Court should apply upon remand. Both parties apparend^ agree that during the telephone con\ersation with juror Payton, he related that his son had recei\ed a broken leg as the result of an exploding tire Counsel for respondents in their brief to the Court of .\ppeals recalled Payton saying that "it did not make any difference whether his son had been in an accident and was seriously injured." "that having accidents are a part of life." and that "all his children have been involved in accidents." Counsel for petitioners recall Paylon as saying that he "did not regard [his son's broken leg! as a 'severe' injury and as he understood the question [the injuryl did not result in any disability or prolonged pain and suffering.' .\s far as .Mr. Payton is concerned he answered counsels question honestly, and correctly, by remaining silent." Ne\ertheless. the manner in which the parties presented the issue of juror Payton's failure to respond on \oir dire was highly unorthodox. While considerations of judicial economy might ha\e motivated the Court of .\ppeals in this case to proceed directly to the issue of the effect of juror Payton's non-disclosure, in cases in which a party is asserting a ground for new trial, the normal procedure is to remand such issues to the district court for resolution, .although petitioner does not dispute respondents' version of the telephone call to juror Payton. it is foreseeable that in another such case, the parties could present the appellate court with a continuing, difficult factual dispute. Appellate tribunals are poor substitutes for trial courts for developing a record or resoK ing factual controversies. 401 Page 696 Trials We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered "citadels of techni- cality." Kotteakos v. United States, 328 U.S. 750, 759 (1946). The harmless error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for "error" and ignore errors that do not affect the essential fairness of the trial. For example, the general rule governing motions for a new trial in the district courts is contained in Federal Rule Civil Procedure 61, which provides: No error ... or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at ever)' stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties, (emphasis added) While in a narrow sense Rule 61 applies only to the district courts, see Fed. Rule Ci\'. Proc. 1, it is well-settled that the appellate courts should act in accordance with the salutary policy embodied in Rule 61. Congress has further reinforced the application of Rule 61 by enacting the harmless error statute, 28 U.S.C. S2in, which applies directly to appellate courts and which incorpo- rates the same principle as that found in Rule 61. The ruling of the Court of Appeals in this case must be assessed against this background. One touchstone of a fair trial is an impartial trier of fact — "a jury capable and willing to decide the case solely on the evidence before it." Smith \'. Phillips, 455 U.S. 209, 217 (1982). Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on \oir dire may result in a juror being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this pro- cess is to serve its purpose is obvious. The critical question posed to juror Payton in this case asked about "in- juries . . . that resulted in any disability or prolonged pain or suffering." Juror Patyon apparently believed that his son's broken leg sustained as a result of an exploding tire was not such an injury, hi response to a similar question from petitioner's counsel, however, another juror related such a minor incident as the fact that his six-year-old son once caught his finger in a bike chain. Yet another juror failed to respond to the question posed to juror Payton, and only the subsequent questioning of petitioner's counsel brought out that her hus- band had been injured in a machinery accident. The varied responses to respondents' question on \oir dire testify to the fact that jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be uncertain as to the meaning of terms which are relati\ely easily understood by lawyers and judges. Moreover, the statutors- qualifications for jurors require only a minimal competency in the English language. 28 U.S.C. S1865. Thus, we cannot sa\, and v\e doubt that the 402 Trials Page 696 Court of Appeals could say, which of these three jurors was closer to the "average juror" in his response to the question, but it is evident that such a standard is difficult to apply and productive of uncertainties. To invalidate the result of a three-week trial because of a juror's mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremp- tory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. Whatever the merits of the Court of Appeals' standard in a world which would redo and reconstruct what had gone before upon any evidence of abstract imperfection, we think it is contrary to the practical necessities of judicial management reflected in Rule 61 and ^21 11. We hold that to obtain a new- trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would ha\e pro\ided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartialit)' can truly be said to affect the fairness of a trial. Generally, motions for a new trial are committed to the discretion of the district court. The Court of Appeals was mistaken in deciding as it did that respondents were entitled to a new trial. In the event that the issue remains relevant after the Court of Appeals has disposed of respondents' other conten- tions on appeal, the District Court may hold a hearing to determine whether respondents are entitled to a new trial under the principles we state here. The judgment of the Court of Appeals is reversed. Justice Blackmun, with whom Justice Stevens and Justice O'Connor join, concurring. I agree with the Court that the proper inquiry in this case is whether the defendant had the benefit of an impartial trier of fact. 1 also agree that, in most cases, the honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial. I therefore join the Court's opinion, but I write separately to state that 1 understand the Court's holding not to foreclose the normal a\enue of relief available to a party who is asserting that he did not have the benefit of an impartial jury. Thus, regardless of whether a juror's answer is honest or dishonest, it remains within a trial court's option, in determining whether a jury was biased, to order a post-trial hearing at which the movant has the opportunity to demonstrate actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred. Justice Brennan, with whom Justice Marshall joins, concurring in the judgment. I agree with the Court that the Court of Appeals employed an erroneous legal standard to determine whether a new trial was required in this case, and that the Court of Appeals compounded that error by failing to remand the case 403 Page 696 Trials to the District Court for a hearing and decision on the motion for new trial in the first instance. I concur only in the judgment, however, because 1 have difficulty understanding the import of the legal standard adopted by the Court. The Court of Appeals ordered a new trial because Ronald Payton, who later was chosen a jury foreman, incorrectly answered an important question posed to prospective jurors on voir dire. Specifically, although asked whether any family members had "sustained any injuries . . . that resulted in any disability or prolonged pain or suffering," Payton failed to disclose a previous injury his son had incurred in a truck-tire explosion. The court concluded that, because the information available to counsel during voir dire was erroneous, Payton's failure to respond "prejudiced the Greenwoods' right of peremptory challenge." It therefore held that the Greenwoods' motion for a new trial should have been granted, and entered judgment granting the motion. I agree with the Court that a finding that less-than-complete information was available to counsel conducting voir dire does not by itself require a new trial. I cannot join, however, in the legal standard asserted by the Court's opinion. In my view, the proper focus when ruling on a motion for new trial in this situation should be on the bias of the juror and the resulting prejudice to the litigant. More specifically, to be awarded a new trial, a litigant should be required to demonstrate that the juror incorrectly responded to a material question on voir dire, and that, under the facts and circumstances surrounding the particular case, the juror was biased against the moving litigant. When applying this standard, a court should recognize that "[tjhe bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law." United States v. Wood, 299 U.S. 123, 133 (1936). Because the bias of a juror will rarely be admitted by the juror himself, "partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it," it necessarily must be inferred from surrounding facts and circumstances. Therefore, for a court to determine properly whether bias exists, it must consider at least two questions: are there any facts in the case suggesting that bias should be conclusively presumed; and, if not, is it more probable than not that the juror was actually biased against the litigant. Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadver- tent or intentional, are simply factors to be considered in this latter determina- tion of actual bias. ■* I therefore cannot agree with the Court when it asserts that "'I'lic Court oi Appeals recognized several other factors in this case, not completely ac- knowledged by the Court's opinion, which might suggest that |uror Payton was biased or that his potential bias resulted in prejudice to the Greenwoods. For example, by claiming during his informal examination after trial that "having accidents are a part of life, " Payton may have displayed insufficient sensitivity to the Greenwoods' claims in this product liability action. This potential bias could only have been exacerbated by the fact that Pa\ton served as foreman of the jury. Moreover, the jury initially returned a verdict assessing $0.00 in damages despite the fact that Billy Greenwood lost both his feet in the lawn-mower accident; only upon reconvening after being admonished by the trial judge did the jury assess damages totaling $?75,000, These factors should be considered along with any other relevant facts and circumstances by the District Court on remand 404 Trials Page 710 a new trial is not warranted whenever a prospective juror provides an honest answer to the question posed. One easily can imagine cases in which a prospec- tive juror provides what he subjectively believes to be an honest answer, yet that same answer is objectively incorrect and therefore suggests that the individ- ual would be a biased juror in the particular case. Given the nature of this legal standard, and given that no claim is raised in this case that bias should be conclusively presumed, the Court of Appeals clearly erred by deciding the issue of juror bias itself rather than remanding the issue to the District Court for a hearing and decision in the first instance. . . . NOTES AND PROBLEMS 1. It is unusual for the Supreme Court to grant certiorari in a case like this, and even more unusual to see the divergence of opinions. State precisely what standard each opinion would use to determine whether a new trial was required because of juror Payton's answer to the question posed on voir dire. 2. Assume the district court finds on remand that the question was ambig- uous, that juror Payton mistakenly thought only disabling injuries were in- cluded, and that Payton should have disclosed his son's injuries. At that point, what action should the district court take, or what further findings must it make? Page 710. For (5), substitute: (5) It is well established that court officials may not intentionally exclude any group from a jury panel. But can the parties accomplish the same result by the use of peremptory challenges? The problem arises because a party ordinarily need not explain or justifs' the use of peremptory challenges; thus a party could strike all blue-eyed panelists from the jury on the basis of whims> . And in fact war stories among trial lawyers suggest the frequent use of peremptories based on hunches about the predilections of various social groups. How far does this unaccountability extend? Could a party use peremptories to strike all the black members of a panel? Swain v. Alabama, 380 U.S. 202, 223 (1965), suggested that such a practice would be unconstitutional in a criminal case but estab- lished so stringent a burden of proof of the prosecutor's motive that in the 20 years following Swain no defendant satisfied it. In Batson v. Kentucky, 106 S. Ct. 1712 (1986), the court relaxed the burden of proof, holding that the systematic striking of black jurors without a justifica- tion based nonracial factors violated the defendant's right to equal protection. Nothing in Batson explicitly limited the application of its principle to criminal cases, but the basis for the holding lea\es its reach beyond the criminal context in doubt. Batson rested on the idea that for a state official — the prosecutor — to use peremptories in a discriminatory way would den\ the defendant equal 405 Page 710 Trials protection of the laws. Does that holding extend to civil cases, in the majority of which the state is not a party? Could a white police officer-defendant (being represented by the city or county attorney) in a civil police brutality action use peremptories to strike black jurors on the grounds that he believed them likely to view police behavior skeptically? Assuming that Batson's holding stretches this far, one must face the question of what might justify such a use of peremptories. Batson said that "the prosecutor may not rebut defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race." 106 S. Ct. 1723. But what if the party exercising the peremptories has empirical evidence that its racial stereotypes reflect the real world? What if, when challenged to justify a pattern of discriminatory peremptory challenges, the hypothetical of- ficer-defendant offered in evidence the results of a well-conducted poll indicat- ing that, all other factors being equal, black Americans tended to think less well of police officers than did their white counterparts? Would that e\idence justify the use of peremptories? Or would it conclusively condemn it? D. Judicial Control of Jury Action 7. New Trial b. Jury Misconduct Page 786. Delete Gault v. Poor Sisters. Substitute: In re Beverly Hills Fire Litigation 695 F.2d 207 (6th Cir. 19S2) Engel, C.J. On the evening of May 28, 1977, fire destroyed the Beverly Hills Supper Club in Southgatc, Kentucky. One hundred sixty-five patrons and em- ployees perished in the fire and many others were injured. Extensive litigation followed in both the State and Federal courts. Underlying this appeal is a class action conmienced in the United States District Court for the Eastern District of Kentucky, based on diversity of citizenship. The class consists of the legal repre- sentatives of the persons killed and approximately thirty-five indixiduals who claimed to have been injured in the fire. Plaintiffs named as defendants se\eral manufacturers of "old technology " aluminum branch circuit wiring, claiming those materials had been installed in the supper club and had caused the fire.' 1. Plaintiffs alleged three theories of liability in their complaint: concert of action, alternative liability, and enterprise liability. The trial judge granted summary judgment in favor of defendants on the issues of alternative and enterprise liability, stating that Kentucky recognized neither theory as a basis for liability. He allowed plaintiffs to go forward on a theory of concerted action. 406 Trials Page 786 Shortly before the trial was scheduled to begin, the trial judge ordered that it be bifurcated. The jury first would consider the question of "causation in fact." If aluminum wiring were found to be a cause of the fire, the jury would then determine questions of liability and damages. Plaintiff's theory at trial was that the fire began in a "dead" or empty space within the north wall of a cubbyhole next to the Zebra Room, located on the first floor of the Supper Club." Plaintiffs asserted that the fire originated at an aluminum duplex receptacle. The receptacle, a standard electrical outlet into which electrical appliances are plugged, was allegedly located in the cubbyhole and connected to aluminum branch circuit wiring. Plaintiffs claimed that, due to a number of physical characteristics of old technology wiring, heat developed at the connection of the aluminum branch circuit wiring to the receptacle,' and that this heat eventually ignited the In his November 14 order, the trial |udge outlined Ins analy.sis of Kentucky law of concerted action. He indicated that "|t]his doctrine imposes ioint liability against '[ajll those who, in pursu- ance of a common plan or design to commit a tortious act, actively take part in it.' " He deter- mined that three elements must be satisfied in order to prevail on this theory: a causal relation between the act and injun; cooperative or concerted activities by defendants; and violation thereby of a legal standard of care. He added that concerted activity can be proved in Kentucky either by explicit or tacit agreement among defendants. This order is not at issue in this appeal. 2. The Zebra Room, comprised of the Room proper, an alcove section an a cubbyhole section, is an "L-shaped" room in the front, or southeast section of the building. It is located on the first floor of the building. At approximately 18' x 28', the Zebra Room proper is one of the smallest rooms in the large supper club, which occupies over an acre in area. Immediately to the west of the Zebra Room proper is the alcove section, approximately 10' x 10'. The cubbyhole section is to the west of the alcove section, approximately 7' x 10'. It is separated frdm the alcove by double doors. Immediately west of the cubbyhole is the main bar. Approximate measurements were determined from a floor plan of the Beverly Hills Supper Club submitted in evidence. All directional references thoughout this opinion are based on an "as.sumed north" indicated on the floor plan. The Zebra Room proper, the alcove and the cubbyhole all are bordered by a common "north wall." A staircase is located on the north side of the north wall. A fountain is located directly to the north of the staircase, 3. Carl Duncan, qualified as an expert in electrical fire origin, testified that there were a number of characteristics of aluminum wire, in comparison to copper wire, which made it subject to overheating. First, large size wire was used because aluminum wiring is less conductive than copper wiring; yet, the screws used to hold the aluminum wiring in place were disproportionately small. Duncan claimed this caused a lesser percentage of conducting material to be in contact with the binding screw than would have occurred with copper wire, which made it more difficult for cicctricitv to be transferred. Duncan claimed this phenomenon itself caused overheating. Second, he found that aluminum was more easily nicked, fractured or broken during installment than was copper; he claimed that damage to the wire reduced its conductivity at various spots. Additionally, an oxide film (rust) immediately forms on exposed aluminum when exposed to the atmosphere. A similar film forms on copper, but on copper it is conduchve whereas on aluminum wire it is not. He concluded this made it more difficult for electricity to flow from wire to receptacle, therefore causing a heat buildup. Finally, Duncan testified that aluminum wiring has a tendency to "creep," which decreases further the wire's ability to conduct electricity. He defined "creep" stating: Creep is that phenomenon of a material to flow away from pressure, and it's also referred to as cold flow. What happens is as you are torquing the screw on the material, the material itself has a tendency to flow away from pressure, and that is a physical phenoruenon of the material. The net effect of that creep or cold flow is that additional surface area of the conductor is exposed to oxidation and when relaxation occurs oxide film is formed and additional heat generated because of the, again, oxidation formation on the conductor and the energy having to break that oxide film down to maintain continuity and conductivity 407 Page 786 Trials wooden studs and other building materials in the wall. Plaintiffs claimed that the heat finally caused an open flame which spread undetected within the wall for approximately one to one and one-half hours before flame broke through the v\all and directly engaged the Zebra Room itself. Defendants responded that the receptacle in the cubbyhole was not proved to have been wired with aluminum branch circuit wiring. They claimed that the fire more likely began due to copper wiring of an electrical pump that was connected to a water fountain located in front of a staircase on the north side of the north wall. The defendants also suggested that the fire started as a result of numerous fire code violations found to have existed in the club. After twenty-two days of trial over a period of eleven weeks, the jury returned a special verdict answering in the negative the question whether the connection of old technology aluminum wired to an electrical device caused the fire at the Supper Club. Based upon that finding, the trial judge entered a general judg- ment in favor of the defendants. Plaintiffs moved for a mistrial, for judgment notwithstanding the verdict and for a new trial. The trial judge denied all motions. These appeals followed. While several issues are raised in these appeals, one error, improper experi- mentation by a juror, is of such importance that it alone mandates vacating the judgment and remanding for new trial or other proceedings. Of the numerous other issues raised, therefore, we address only those relevant to the disposition of this appeal or those whose resolution may facilitate any proceedings on remand. I During the trial, one of the jurors performed an improper experiment when he investigated the condition of the aluminum wiring and connections in his home. He then reported his findings to other jurors, findings which were factually at odds with plaintiffs' theory of how the fire began. Plaintiffs .sought to show throughout the course of the trial that aluminum branch wiring is more likely to overheat and cause fires than is copper wiring. Carl Duncan, qualified as an expert in electrical fire origin, testified that an early indication of the degenerative process leading to overheating is that bind- ing screws holding the wire appear to be loose. This loosening, he testified, aggravates the inability of the wire to conduct electricih'. As the process alleg- edly occurs over a period of 5 to 10 years, plaintiffs characterized aluminum wiring systems as "time bombs." Following this testimony, the juror examined receptacles in his home. He pulled receptacles from their boxes and checked the binding head screws for tightness. He also looked for receptacles manifesting later stages of degeneration. His experiment tended to contradict evidence presented by the plaintiffs on the hazards of aluminum wiring. The juror found nothing wrong with his own receptacles which, he claimed, had been installed eleven years earlier. The juror believed that, under plaintiffs' theory, the receptacles would ha\e been in place long enough for some degeneration to have occurred. He also found that the screws holding alumininn w iring to his electrical devices in his outlets were tight. 408 Triak Page 786 After the verdict for the defendants had been rendered and the jur\ dis- charged, the juror wrote an anonymous letter to the Kentuck\ Enquirer, a newspaper of general circulation in northern Kentucky. In the letter, he ex- plained the reasons for his decision and challenged the \alidit>' of the plaintiffs' evidence when compared to findings in his own home.^ He also expressed the view that the fire was caused by numerous fire code \iolations found in the Supper Club. In the post-trial evidentiarv- hearing, the trial judge learned that the juror communicated this information to at least six other jurors during the course of the trial. At least one juror recalled ha\ing privately discussed this matter with the experimenting juror during the course of the jun. deliberations. Thereafter, plaintiffs moved for a mistrial. The trial judge denied plaintiffs motions for mistrial, for judgment nohvith- 4. The letter states: 1 want to let the people know how I reached a decision on the Beverly Hills Trial. This is the first time I ha\e e\er been called for )ur> Duhi it was something I think evervone should do just to find out how the system works It could ha\e been shortened — it was rather repetitious, and a two hour lunch — I'm used to a half hour. The receptacles that were taken out of the front part of the building (not in the fire) were wired with aluminum branch circuit wiring. These were sent up state and put on a test rack. The Jury never had an opportunity to see these receptacles even though they were in the court room. New receptacles howe\er were passed showing how aluminum could be wired — some correctly Sc some wTong. In our deliberations, the receptacles that were put on test were with the many artifacts of the case. TTiis is the first time I got to see them, (about 10 or 12 receptacles i Two of these receptacles had the aluminum] wire counter clockwise under the binding head screw w hich is WTong. When tightening a screw clockwise the wire under the screw should be clockv\ise also. Two more outlets or receptacles, the [aluminum] wire was loose under the binding head screw — 1 could move the wire. In another outlet. I wanted to see if 1 could tighten a binding head screw that appeared to be tight. I got about Mo" turn on the screw . The first week of the trial the binding head screw came up about 500 times — even [the trial judge] started to get upset with repetition. I went home one night, pulled about 1 5 outlets from their boxes and wanted to see how loose the connections were. I could not turn any of the screws one bit. \\\ home is wired with [aluminum;. 1 bought the house 11 years ago in 1969. The plaintiffs talk about stress relaxation and creep which would cause the [aluminum] wire to loose its torque after a short period of time. My outlets are still tight after 1 1 years of use. How come these are not loose? .\nother part of the trial, a list of code violations were read off as long as your arm. A witness asked if they contributed to the fire, the answer was no. These were violations that were found in most of the unbumed portions of the fire what about the violations that were destroyed b> the fire no one knows about? This IS what caused the fire!! In my opinion one violation of code is too many. TTiey should close a place down and keep it closed until the violations are corrected.. When I go out on a weekend to eat or take in a show for enjoyment. I want to come home [safely]. There was a flash of fire seen in the Garden room about the same bme there was smoke in the Zebra Room. Where did it start? God only knows where the fire started and how it started. Whv is that a person has to be hurt or maybe killed before a problem is corrected? 1 also want to let the people who lost family &■ friends in the tragic fire of Beverlv Hills that my prayers are with them. one luror on the Beverly Hills trial 409 Page 786 Trials standing the verdict, and for a new trial based upon the juror's conduct, observing: In the context of the trial length, the quantit) of e\idence presented and the number of witnesses called by each side, this action by a juror appears to be of minor consequences and not a sufficient intrusion upon the deliberative process as to require the setting aside of the jur\ verdict. Plaintiffs claim that the juror's in\estigation was an impermissible experiment requiring that the verdict be set aside. Defendants respond that the juror's action was harmless. They further stress that the inflammatory language regarding "time bombs" made it almost inevitable that the experiment would occur. Since the trial was expected to be a long one, the defendants claim that it is unreasonable to expect that a juror would wait until the end of the trial to inspect his own home for dangers which the plaintiffs had so characterized. Defendants contend that the juror's investigation was not in the nature of an "experiment" nor a purposeful attempt to develop information about the case being tried, but was more in the nature of a personal and unrelated experience which could not ha\e affected the judgment of that juror or those to whom he communicated that information. Upon a careful examination of the record and the applicable law , we regret- fully conclude that the jury verdict was impermissibly tainted by what can only be characterized as an improper juror experiment. The general rule is that a juror may not impeach his verdict. Fed. R. Evid. 606(b). The rule ensures that jurors will not feel constrained in their deliberations for fear of later scrutiny by others. Further, it guarantees that jurors cannot ma- nipulate the system when their views are in the minority by repudiating an earlier verdict and obtaining a mistrial. It thus advances important policy considerations. An exception to the general rule has developed where external factors are shown to have existed. As stated by Judge Peck "the [general] rule does not preclude inquiry into any extraneous influences brought to bear upon the jury in order to show what the influences were and whether they were prejudicial." [Womble v. J. C. Penney, 431 F.2d 985 (6th Cir. 1970)]. Rule 606(b) specifi- cally allows inquiry into external influences upon a jury.^ This exception is 5. As the .'\dvisory Comniittee on the Proposed Rules of Evidence noted; The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquin,'. place every verdict at the mercy of jurors and invite tampering and harassment. The authorities are in \irtuall\ complete accord in excluding the evidence. 6. Rule 606(b) provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jurv's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection thercvsith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon anv turor. Nor may his affida\it or evidence of any statement by him concerning a matter about «hich he would be precluded from testifying be received for these purposes. 410 Trials Page 786 necessary to assure that the parties receixe a fair trial and that the integrih' of the system itself is maintained. Defendants contend that the juror's act in checking his own wiring was "too simple and natural to be deemed in any sense an experiment." Stone v. City of Florence. Rather, they suggest, knowledge gleaned from that activity is in the nature of general knowledge or common experience, which a juror is entitled to consider in his deliberations. In our view, the juror experimentation here was more than a mental or emotional reaction or expression. The experiment, in fact, injected extraneous information into the trial. While the juror's con- duct here may very well have been "simple and natural," it was, under any test, an experiment. It is not uncommon for a court to instruct a jury that jurors may consider the evidence in light of their general knowledge and experiences of life, and the trial judge gave a similar instruction here. One function of the jury is to infuse a practical sense into the legal theories offered at trial. Courts therefore have generally found discussions regarding such experiences quite unobjectionable. On the other hand, our court has not hesitated to declare mistrials where the acti\ it)' went beyond mere general knowledge and was instead a response to the facts of the case at hand. An investigation is improper where it "amount[s] to additional evidence supplementary to that introduced during the trial." Womble, supra, 4?1 F.2d at 989. Thus, our court ordered a new trial where a juror brought into the jury room a manual published by the Highv\ay Depart- ment, but not introduced at trial, purporting to show the length of skid marks made by automobiles at different speeds. Stiles v. Lawrie, 211 F.2d 188 (6th Cir. 1954). Similarly, our court held that a new trial was properly granted v\here during the trial a juror had traxclled to plaintiffs property to view certain cattle which were the subject of litigation, reporting back to the jury that he thought that the cattle looked like "about the best looking he had seen in a long time." Aluminum Companv of America \-. Loveday, 275 F.2d 499 (6th Cir. 1959), cert, denied, 363 U.S. 802 (1960). In the present case the juror's investigation had the effect of putting both himself and the other jurors with whom he discussed his findings in possession of evidence not offered at trial. The juror tested the outlets for tightness and compared his results to the evidence in the case, observing in his letter to the Enquirer that "my outlets are still tight after 1 1 years of use, how come these are not loose?" It is clear that additional evidence was before at least one member of the jury. In fairness, it is apparent that the juror was troubled b>' references made to 7. The trial judge instructed the |ury in part as follows: You are expected in deciding this case to use your iudgment and common sense. Give the evidence and the testimony of the witnesses a reasonable and fair interpretation based upon your know ledge and experience of the natural tendencies of human beings, that is what you bring with you into the courtroom, your lifetime of experience, your experiences with human beings and how they react. 411 Page 786 Trials the dangerous propensities of aluminum wire. The juror indicated his concern at the evidentiary hearing following the trial: Q: Approximately when did this [his check of the fuse box] occur? A. Sir, the first part of the trial, it come out that they they was talking about aluminum wire wired to outlets that was like a time bomb; it could go off any time, and they brought out slides and they was showing the outlet glowing and charring and they showed the studs burning; and that's why 1 went home and checked them that night. I didn't check the aluminum for tests or experiments or to see if it was safe. I was concerned with my family. Whatever the juror's motives, however, the potential for prejudice inherent in an out-of-court experiment in this case remains. It is impossible to determine without the benefit of a vigorous cross-examination following formal introduc- tion of evidence whether an experiment duplicated what actually occurred in the case. Highly misleading results can follow. Here, the juror assumed his electrical outlets were constructed in the same manner as those offered by plaintiffs. He then made conclusions directly related to the outcome of the case, and he communicated these facts to other jurors. No opportunity was afforded either litigant to determine whether the juror's wiring was aluminum and, if so, whether it was old technology wire. They further were unable to consider other conditions that my have accounted for the differing results. In short, the juror considered evidence from an experiment which was not subject to scrutiny or cross-examination by any party. Our circuit has recognized that such an error can rarely be viewed as harm- less. The jury's receipt of such extraneous information "requires that the verdict be set aside, unless entirely devoid of any proven influence or the probability of such influence upon the jury's deliberations or verdict. " Stiles, supra. Here, the juror's letter made clear that the results of his in\estigation were a factor in his decisionmaking. While influence on a single juror may be enough to necessitate reversal and remand, the error is particularly grievous because a unanimous verdict was required and the juror communicated his findings to other jurors.'" We conclude that the controlling law permits no alternative to reversal." 9 Defendants point to four occasions when counsel for plaintiffs used the phrase "time-bomb" and two other occasions when witnesses for plaintiff lent support to that characterization. 10 In Stiles, the court explained why a presumption of prejudice is necessar\'. It stated; The foreman of the jury was asked by the trial court whether (the extraneous evidence] played any important part in the final verdict of the jury, and his reply was: "1 don't know, judge." Neither did the district court know, nor could it have known, whether this evi- dence, introduced without the knowledge of court or counsel after the retirement of the jury, influenced the verdict; and. certanily, this court, farther removed from the trial, could have no way of knowing what effect this extraneous evidence produced upon the verdict. Stiles, supra, 211 F.2d at 190 11. Because the juror discussed his findings with other jurors, wc need not decide whether an uncorroborated claim that an experiment was conducted, which potentiallv could be used merely as a tool to manipulate the verdict, would support a mistrial. 412 Trials Page 803 In remanding, the question remains whether anything can be done to avoid repetition of this incident. The trial judge instructed the jur\' not to seek outside information. Obviously, the juror's concern for his safety played a substantial part in the experiment which was conducted despite the instruction. While due regard ought to be given to the customary latitude which counsel need in order to bring life and meaning to the case, we suggest that the court on retrial mav wish to confer with counsel on the means b\' which they can a\oid alarming the jury. It would probably not be inappropriate under the circumstances if counsel were cautioned in the use of inflammatory language. Perhaps the trial court itself could give more explicit precautionary instructions, provided, of course, that they themseKes were balanced and did not create the very hazard they might be designed to avoid. All of this, however, we leave to the good judgment and discretion of the trial court. n [The court went on to hold that it was not improper to sever the issue of causation from other issues for separate trial (relying on Beeck \. Aquaslide 'n' Dive Corp., page 429 of the casebook), that plaintiffs' e\idence was sufficient to take the case to the jury, that the special questions were adequateh' phrased, and that a Kentucky statute did not preclude the action.] d. JRemittitur and Additur Page 803. Add the following case: Akermanis v. Sea-Land Service, Inc. 688 F.2d 898(2dCir. 198Zi Newman, C.J.: This appeal concerns primarily the issue, apparently one of first impression in the federal courts, whether a trial judge may use the device of a new trial order conditioned on a remittitur to increase a jury's determination of the percent of responsibility for an injury that is attributable to a plaintiffs contributory negligence. That device was employed in this suit under the Jones Act, 46 U.S.C. S688 (1976), brought by plaintiff Carl O. Akermanis, an injured seaman, against defendant shipowner Sea-Land Service, Inc. After plaintiff agreed to the remittitur, the District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) entered judgment on November 17. 1981. in favor of the plaintiff. 521 F. Supp. 44. Defendant appeals, contending that it is entitled to an unconditional order for a new trial. Plaintiff cross-appeals, seeking an increased judgment based on the jury's initial determination as to the share of responsibility attributable to his negligence. For reasons that follow . we conclude that a remittitur may not be used to adjust a jury's contributory negligence percentage, and we therefore reverse and remand for further proceedings. 413 Page 80? Trials In the spring of 1977, Akermaiiis was a tliird assistant day engineer aboard Sea-Land's vessel S/S Los Angeles during a voyage from Greece to Rotterdam. One of the plaintiffs duties was to replace deteriorated angle irons on pedestals used to secure the vessel's deck cranes. At trial, Akermanis contended that the defendant's negligence caused him to injure himself v\hile working on these pedestals. Although there v\as conflicting evidence, Akermanis testified that on June 4, 1977, his superiors instructed him to work on the deck burning off a rusted pedestal bracket, despite rolling seas and a deck slippery from the ocean's spray. According to the plaintiff, as a result of these unsafe working conditions, he lost his balance, hit his head against the pedestal, and hurt his back when his head was snapped backwards as he fell. The accident was said to have severely injured Akermanis' cervical spine and forced his earK retirement from the merchant marine. Sea-Land Scr\ice contested almost all of Akermanis' allegations. First, Sea- Land claimed that Akermanis' injuries stemmed not from an accident aboard the Los Angeles, but rather from several preexisting ailments. Second, Sea- Land contended that it was in no way to blame for the condition of the Los Angeles on June 4, 1977, that Akermanis had not been ordered to work on the pedestal bracket at any particular time, and that any risks Akermanis faced while working on the deck were inherent in the life of a seaman. In addition, Sea-Land raised the defense of contributory negligence, arguing that, if work- ing on the pedestal was unsafe, Akermanis, who was 59 years old and had 30 years of maritime experience at the time of the accident, should have been able to appreciate the danger and rearrange his schedule to work below deck until the weather cleared. According to the defendant, Akermanis had considerable discretion in scheduling his work. Moreover, counsel for Sea-Land suggested that the alleged accident was more likely the result of Akermanis' carelessness in doing his job than any fault of the defendant. Finally, Sea-Land introduced evidence through a series of expert witnesses that contradicted the testimony of Akermanis' doctors as to the extent and cause of his spinal injuries. In response to a special verdict form, the jury found that Sea-Land was negligent, that its negligence was a proximate cause of Akermanis' June 4, 1977, accident, and that as a result of the accident, Akermanis suffered dam- ages totaling $528,000. The jury further found that Akermanis also was negli- gent and that the share of responsibility attributable to his negligence was four percent. Following the jur\'s \erdict, Sea-Land mo\ed for judgment nohvithstanding the verdict or, in the alternative, for a new trial, pursuant to Fed. R. Ci\'. P. 50(b). After reviewing the record, Judge Haight concluded that there was suffi- cient evidence to support the jury's findings that negligence on the part of the defendant caused the plaintiffs injuries. . . . Judge Haight then considered the jury's finding that plaintiffs contributory negligence was a four percent cause of the accident, and concluded that the selection of this percentage was against the weight of the evidence, in his view a "clear and serious error." While he agreed that it was reasonable for the jury to 414 Trials Page 803 determine that Sea-Land's negligence was the major cause of the accident, he rejected four percent as the measure of plaintiff's share of responsibilitv. His reasoning is set forth in his memorandum opinion. He first assumed that the jun's finding of plaintiff's contributor)- negligence was based on their accep- tance of defendant's e\ idence that Akermanis had some discretion to determine when he would work on the ship's pedestals and had exercised that discretion without using reasonable care, judge Haight then determined that a factor of only four percent for contributors negligence of this sort was against the weight of the evidence and so substantially below jur\ determinations in similar Jones .\ct cases as to warrant a new trial. After referring to cases cited at 44A Modern Federal Practice Digest Seamen S29(4)(H) (West 1968). he concluded that the lowest contributory negligence factor the evidence would support was 25 per- cent. He therefore ordered a new trial on liabilih issues, but with the condition that the defendant's motion for new trial would be denied if the plaintiff would accept a "remittitur " of damages based on an increase of the contributory negligence factor from four to 25 percent. The plaintiff accepted, and judg- ment was entered in fa\or of the plaintiff for ~5 percent of the jury's determina- tion of the total amount of damages suffered. I We consider first Sea-Land's appeal, which challenges the District Court's authoritv' to use the device of a remittitur to adjust the jur> 's determination of the contributory negligence percentage. Remittitur is a limited exception to the sancht>- of jury fact-finding. It allows trial judges to reduce damages, but only when an award is grossly excessive. As the Supreme Court has stated, this exception is justified because, "[w]here the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the \erdict along w ith the unlawful excess — in that sense that it has been found by the jury — and that the remittitur has the effect of merely lopping off an excrescence," Dimick v. Schiedt, 293 U.S. 474, 486 (1935). But in Dmick, the Supreme Court made clear that remittitur was not an expansi\e doctrine: "Maintenance of the jur\' as a fact-finding body is of such importance and occupies so firm a place in our historv' and jurisprudence that any seeming curtailment of the right to a jury- trial should be scrutinized with the utmost care." In gi\ing that scrutiny to the use of remittitur in this case, we note a fundamental difference between the use of remittitur to decrease a determina- tion of damages and its use here to increase a contributory negligence percent- age. Though both have the same ultimate consequence of reducing the amount of the judgment that the plaintiff is in\ited to accept as the price of avoiding a new trial, the means by which the reduction is accomplished differ in a way that is critical to determining the lawfulness of the technique. A conditional reduction of a damage calculation leaves in the judgment a portion of what the jur>' awarded, a circumstance that the Supreme Court considered 415 Page 803 Trials crucial to its willingness to permit remittitur while rejecting additur in Dimick. In this case, however, the conditional adjustment of the contributory negli- gence percentage inserts into the judgment something beyond what the jury found: a conclusion that the plaintiffs negligence was responsible for a greater share of the accident than the jury had thought. In Dimick, the four dissenters thought it was needlessly artificial to deny a trial judge the authority to condi- tion a new trial order on payment of an additur while permitting him to use the device of remittitur. In either circumstance, they argued, the judge is simply conditioning the new trial order on the minimum adjustment necessary to render the verdict within the bounds of reasonableness. But their view did not prevail. We are therefore obliged to apply the rationale of the Dimick majority, which, as we understand it, precludes any adjustment that extends a jury's finding, even if that extension results in a reduced monetary judgment.' We have located onfy one case in which a trial court attempted to use the remittitur device to adjust a jury's contributory negligence assessment, and that decision did not survive appellate review. In Ferguson v. Chester A. Poling, Inc., 285 N.Y.S. 340, 247 A.D. 727 (2d Dep't 1936) (per curiam), also a Jones Act case, the jury found that the plaintiff had suffered damages of $25,000, and then reduced this sum by $5,000 because the plaintiff's contributory negligence was a 20 percent cause of the accident. The trial court thought the lowest reasonable contributory negligence factor was 60 percent and therefore ordered a new trial unless the plaintiff agreed to a reduction in the judgment from $20,000 to $10,000. The Appellate Division reversed because "the question of apportioning the negligence was peculiarly within the province of the jury." We agree with the New \'ork court that a jury's apportionment of responsibility in a Jones Act case is not subject to adjustment by the device of a remittitur. In Ferguson the Appellate Division ordered judgment upon the jury's fact-finding. Whether that result or a new trial is warranted here requires consideration of plaintiff's cross-appeal. U [The court then held that plaintiff could cross-appeal the trial court's deci- sion that the lowest possible contributory negligence factor supported by the evidence was 25 percent. According to the court, the Donovan rule, which forbids a plaintiff accepting a remittitur from appealing (page 803 of the case- book), was inapplicable because "it is conceptually difficult and practically unfair to think of the plaintiff as having waived a cross-appeal by consenting to 1 It could be argued that the type of remittitur permitted by Judge Haight should be allowed since the increase in the contributory negligence factor can be accomplished only with the consent of the plaintiff, whose share of fault is being enlarged. However, it was equally true in Dimick that the increa.se in the amount of damages sought to be achieved by the use of additur could have been accomplished only with the consent of the defendant, who would have paid the increase. The Supreme Court's rejection of additur. indeed, its grudging acceptance of remittitur, suggests that jury determinahons are not to be enlarged upon, even with the consent of the party thereby disadvantaged. 416 Trials Page 803 a judgment that no longer exists." Further, consideration of the appeal might make a new trial unnecessary after all. On the merits, the court held that although the finding of 4 percent con- tributor\ negligence might not be justified if the basis of contributory negli- gence was that Akermanis continued to work in bad weather, it might be justified on the basis of his inattention. This question was remanded to the trial court for further consideration. Finally, if a retrial was necessary, the trial court was to have discretion to limit it to liability issues alone, or even to limit it to the question of contribu- tory negligence.] NOTES AND PROBLEMS 1. The court distinguishes remittitur from (a) additur, and (b) altering dam- ages because of redetermination of the degree of contributory negligence. Is there an analytical distinction between these matters? 2. Does this suggest a reason wh\ the courts do not like to use interrogatories to the jury? 417 RESPECT FOR JUDGMENTS XI B. Collateral Estoppel 4. Mutuality of Estoppel Page 944. After note 7, add: 8. In United States v. Mendoza, — U.S. — , 52 U.S.L.W. 4019(1/10/84), the Supreme Court held that the use of nonmutual ofFensi\e collateral estoppel against the United States is inappropriate. A case pre\ious to Mendoza, unap- pealed b\- the government, had held that certain naturalization procedures denied due process. Mendoza had gone through the same procedures and had been denied naturalization. He sued, and the district court held that the gov- ernment was collaterally estopped on the due process question. The court of appeals affirmed. In re\ersing, the Supreme Court explained that the United States is not like other litigants. The chief reason for treating it differently is that it frequentK litigates issues of substantial public importance, which should not be determined on the basis of a previous unappealed decision. Second, the Supreme Court noted that a contrary holding would necessarily influence the Solicitor General's strategy with respect to appeals (encouraging them in all cases in which the district court ruled against the government), which now is significantly affected by limited resources. The Court was unanimous. On the other hand, in a companion case decided the same dav, United States V. Stauffer Chemical Co., — U.S. — , 52 U.S.L.W. 4022 (1/10/84), the I'nited States was held bound by the use of mutual defensive collateral estop- pel. (The particular issue was whether a statute that allowed "authorized repre- sentatives" to inspect a private plant for \ iolations of the Clean Air Act would allow the government to hire private in\ estigators. ) The chief concern of the Mendoza case — that one earlier unappealed case would operate in fa\or of the entire world — was absent in Stauffer because Stauffer inxolved mutual collat- eral estoppel. Stauffer raised the question whether the collateral estoppel ought to be effective outside the circuit in which the earlier case was decided and answered it in the affirmative. A troublesome point raised by the Court was the effect of the doctrine of collateral estoppel on questions of pure law. The Court recognized a doctrine under which earlier decisions on questions of pure law- are not necessarih binding in later litigation that is "so unrelated to the prior case that relitigation of the issue is warranted. ' Without defining the degree of 419 Page 944 Respect for Judgments unrelatedness required for application of this exception, the Court found the exception inapphcable to the facts of the Stauffer case. Justice White, concurring in the result, noted an anomaly: because Stauffer is based on mutualit>', other companies will not be able to take advantage of its holding that the goxernment may not use pri\ate in\estigators. At the same time, since the decision is not restricted to a single circuit, another company would be bound by an earlier decision from another circuit coming out the opposite way on the "authorized representatixe" issue. The result is that two nationwide companies that happened to initialK' battle with the go\ernment in different locations may find themseKes with side-by-side plants, one of which may be investigated by pri\ate in\estigators and the other of which may not. C. Exceptions to the Rules of Res Judicata and Collateral Estoppel 1. Res Judicata Page 954. Before 2. Collateral Estoppel add: Federated Department Stores, Inc. v. Moitie 4^2 U.S. ?94(19Sll Justice Rehnquist deli\ered the opinion of the Court. The only question presented in this case is whether the Court of Appeals for the Ninth Circuit validly created an exception to the doctrine of res judicata. The court held that res judicata does not bar relitigation of an unappealed adverse judgment where, as here, other plaintiffs in similar actions against common defendants successfully appeal the judgments against them. We dis- agree with the view taken by the Court of Appeals for the Ninth Circuit and reverse. I In 1976 the United States brought an antitrust action against petitioners, owners of various department stores, alleging that the> had \iolated .U of the Sherman Act, 15 U.S.C. SI. by agreeing to fix the retail price of women's clothing sold in Northern California. Se\en parallel civil actions were subse- quently filed by private plaintiffs .seeking treble damages on behalf of proposed classes of retail purchasers, including that of respondent Moitie in state court {Moitie I) and respondent Brown {Brown I) in the United States District Court for the Northern District of California. Each of these complaints tracked almost verbatim the allegations of the Government's complaint, though the Moitie 1 420 Respect for Judgments Page 954 complaint referred soIeK' to state law . All of the actions originally filed in the District Court were assigned to a single federal judge, and the \loitie I case was remo\ed there on the basis of di\ersit>' of citizenship and federal question jurisdiction. The District Court dismissed ail of the actions "in their entirety" on the ground that plaintiffs had not alleged an "injur." to their "business or property" within the meaning of S4 of the Clayton Act, 15 U.S.C. SI 5. Plaintiffs in five of the suits appealed that judgment to the Court of Appeals for the Ninth Circuit. The single counsel representing Moitie and Brown, however, chose not to appeal and instead refiled the h\o actions in state court, Moitie U and Brown U. Although the complaints purported to raise only state-law claims, they made allegations similar to those made in the prior complaints, including that of the Government. Petitioners removed these new actions to the District Court for the Northern District of California and moved to have them dismissed on the ground of res judicata. In a decision rendered July 8, 1977, the District Court first denied respondents' motion to remand. It held that the complaints, though artfullv- couched in terms of state law, were "in many respects identical" with the prior complaints, and were thus properly removed to federal court because they raised "essentiallv federal law" claims. The court then concluded that because Moitie 11 and Broun // involved the "same parties, the same alleged offenses, and the same time periods ' as Moitie I and Brown /, the doctrine of res judicata required that they be dismissed. This time, Moitie and Brown appealed. Pending that appeal, this Court on June 11. 1979 decided Reiter v. Sono- tone Corp., holding that retail purchasers can suffer an "injury" to their "busi- ness or property" as those terms are used in H of the Clayton Act. On June 25, 1979, the Court of Appeals for the Ninth Circuit reversed and remanded the five cases which had been decided with Moitie I and Broun /, the cases that had been appealed, for further proceedings in light of Reiter. When Moitie U and Broun // finallv came before the Court of .Appeals for the Ninth Circuit, the court reversed the decision of the District Court dismiss- ing the cases." Though the court recognized that a "strict application of the doctrine of res judicata would preclude our review of the instant decision," it refused to apply the doctrine to the facts of this case. It obsened that the other five litigants in Weinberg cases had successfully appealed the decision against 2. The Court of .Appeals also affirmed the District Court's conclusion that Brown II was properK removed to federal court, reasoning that the claims presented were "federal m nature." V\'e agree that at least some of the claims had a sufficient Federal character to support removal. As one treatise puts it, courts "will not permit plaintiff to use artful pleading to close off defendant's right to a federal forum. . .[and that] occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiffs characterization. " 14 Wright. Miller &• Cooper. Federal Practice and Procedure \^"22. at 565-566 (19~6 ed) iciting cases). The District Court applied that settled principle to the facts of this case, .^fter "an extensive review and analysis of the origins and substance of the two Brown complaints, it found, and the Court of .Appeals expressly agreed, that respondents had attempted to avoid removal jurisdiction by "artfully " casting their "essentially federal law claims" as state-law claims. We will not question here that factual finding. 421 Page 954 Respect for Judgments them. It then asserted that "non-appcahng parties may benefit from a reversal when their position is closely intenvo\en with that of appealing parties," and concluded that "because the instant dismissal rested on a case that has been effectively overruled," the doctrine of res judicata must give way to "public policy" and "simple justice." We granted certiorari to consider the validity of the Court of Appeals' no\el exception to the doctrine of res judicata. n There is little to be added to the doctrine of res judicata as developed in the case law of this Court. A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could ha\e been raised in that action. Nor are the res judicata consequences of a final, unap- f)ealed judgment on the merits altered b\ the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. As this Court explained in Baltimore Steamship Co. v. Phillips, an "erroneous conclusion" reached b\' the court in the first suit does not deprive the defendants in the second action "of their right to rely upon the plea of res judicata. ... A judgment merely voidable because based upon an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause of action." We have observed that "the indulgence of a contrary view would result in creating elements of uncertaintv- and confusion and in undermining the conclusive character of judgments, consequences which it was the v ery purpose of the doctrine of res judicata to avert." In this case, the Court of Appeals conceded that the "strict application of the doctine of res judicata" required that Broun // be dismissed. By that, the court presumably meant that the "technical elements" of res judicata had been satis- fied, nanielv', that the decision in Brown I was a final judgment on the merits and involved the same claims and the same parties as Brown U. ' The court, however, declined to dismiss Brown II because, in its view, it would be unfair to bar respondents from relitigating a claim so "closely intenvoven" with that of the successfully appealing parties. We believe that such an unprecedented departure from accepted principles of res judicata is unwarranted. Indeed, the decision below is all but foreclosed by our prior case law. In Reed v. Allen, this Court addressed the issue presented here. The case involved a dispute over the rights to property left in a will. A won an inter- pleader action for rents derived from the property and, while an appeal was pending, brought an ejectment action against the rival claimant B. On the basis of the decree in the interpleader suit A won the ejectment action. B did not appeal this judgment, but prevailed on his earlier appeal from the inter- pleader decree and was awarded the rents which had been collected. When B V The dismissal for failure to state a claim under Fed. Rul Ci\. Proc. 12(b)(6) is a "judgment on the merits." 422 Respect for Judgments Page 954 sought to bring an ejectment action against A, the latter pled res judicata, based on his previous successful ejectment action. This Court held that res judicata was available as a defense and that the property belonged to A: The judgment in the ejectment action was final and not open to assault collaterally, but subject to impeachment only through some form of direct attack. The appellate court was limited to a review of the interpleader decree; and it is hardly necessary to say that jurisdiction to review one judgment gives an appellate court no power to reverse or modify another and independent judgment. If respondent, in addition to appealing from the [interpleader] decree, had appealed from the [ejectment] judgment, the appellate court, having both cases before it, might have afforded a remedy. . . . But this course respondent neglected to follovw This Court's rigorous application of res judicata in Reed, to the point of leaving one party in possession and the other party entitled to the rents, makes clear that this Court recognizes no general equitable doctrine, such as that suggested by the Court of Appeals, which countenances an exception to the finality of a party's failure to appeal merely because his rights are "closely interwoven " with those of another party. Indeed, this case presents even more compelling reasons to apply the doctrine of res judicata than did Reed. Respon- dents here seek to be the windfall beneficiaries of an appellate reversal procured by other independent parties, who have no interest in respondents' case, not a reversal in an interrelated case procured, as in Reed, by the same affected party. Moreover, in contrast to Reed, where it was unclear why no appeal was taken, it is apparent that respondents here made a calculated choice to forego their appeals. See also Ackermann v. United States, 340 U.S. 193 (1950) (holding that petitioners were not entitled to relief under Fed. R. Civ. Pro. 60(b) when they made a "free, calculated, deliberate choice" not to appeal). The Court of Appeals also rested its opinion in part on what it viewed as "simple justice." But we do not see the grave injustice which would be done by the application of accepted principles of res judicata. "Simple justice" is achieved when a complex body of law developed over a period of years is evenhandedly applied. The doctrine of res judicata serves vital public interests beyond any indixidual judge's ad hoc determination of the equities in a particu- lar case. There is simply "no principle of law or equit>' which sanctions the rejection by a federal court of the salutary principle of res judicata." The Court of Appeals' reliance on "public policy" is similarly misplaced. This Court has long recognized that "[p)ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as be- tween the parties. " We have stressed that "the doctrine of res judicata is not a mere matter of practice of procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded and enforced by the court " The language used by this Court half a century ago is even more compelling in view of todav's crowded dockets: 423 Page 954 Respect for )udgments The predicament in w hich respondent finds liimself is of liis own making . . . we cannot be expected, for his sole relief, to upset the general and well-established doctrine of res judicata, conceived in the light of the maxim that the interest of the state requires that there be an end to litigation — a maxim which comports with common sense as well as public policy. And the mischief which would follow the establishment of precendent for so disregarding the salutarx' doctrine against prolonging strife would be greater than the benefit which would result from relieving some case of individual hardship. Respondents make no serious effort to defend the decision of the Court of Appeals. The\' do not ask that the decision below be affirmed. Instead, they conclude that the "the writ of certiorari should be dismissed as impro\'idently granted." In the alternative, they argue that "the District Court's dismissal on grounds of res judicata should be reversed, and the District Court directed to grant respondent's motion to remand to the California State Court. " In their view. Brown I cannot be considered res judicata as to their state law claims, since Brown I raised only federal-law claims and Brown II raised additional state-law claims not decided in Brown I, such as unfair competition, fraud and restitution. It is unnecessar\ for this Court to reach that issue. It is enough for our decision here that Brown 1 is res judicata as to respondents' federal law claims. Accordingly, the judgment of the Court of Appeals is reversed, and the cause remanded for proceedings consistent with this opinion. It is so ordered. Justice Blackmun, with whom Justice Marsh.'^ll joins, concurring in the judgment. While 1 agree with the result reached in this case, I write separatcK to state my views on two points. First, I, for one, would not close the door upon the possibilitv that tliere are cases in which the doctrine of res judicata must gi\e way to w hat the Court of Appeals referred to as "overriding concerns of public policy and simple justice." Professor Moore has noted: "Just as res judicata is occasionalK' qualified by an overriding, competing principle of public policy, so occasionally it needs an equitable tempering." See also Reed \. Allen, 286 U.S. 191 (1932) (Cardozo, J., joined by Brandeis and Stone, JJ., dissenting) ("A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear nccessitv'"). But this case is clearly not one in which equity required that the doctrine give way. Unlike the nonappealing party in Reed, respondents were not "caught in a mesh of procedural complexi- ties." Instead, they made a deliberate tactical decision not to appeal. Nor would public policy be served by making an exception to the doctrine in this case; to the contrary, there is a special need for strict application of res judicata in complex multiple party actions of this sort so as to discourage "break-away" litigation. Finally, this is not a case "where the rights of appealing and nonap- pealing parties are so interwoven or dependent upon each other as to require a 424 Respect for Judgments Page 954 reversal of the whole judgment when a part thereof is reversed." See Ford Motor Credit Co, v. Uresti, 581 S.W.Zd 298, 300 (Tex. Civ. App. 1979). Second, and in contrast, I would flatly hold that Brown I is res judicata as to respondents' state law claims. Like the District Court, the Court of Appeals found that those state law claims were simply disguised federal claims; since respondents have not cross-petitioned from that judgment, their argument that this case should be remanded to state court should be itself barred by res judicata. More important, even if the state and federal claims are distinct, respondents' failure to allege the state claims in Brown I manifestly bars their allegation in Brown U. The dismissal of Brown / is res judicata not only as to all claims respondents actually raised but also as to all claims that could have been raised. Since there is no reason to believe that it was clear at the outset of this litigation that the District Court would have declined to exercise pendent jurisdiction over state claims, respondents were obligated to plead those claims if they wished to preserved them. Because they did not do so, I would hold the claims barred. Justice Brennan, dissenting. In its eagerness to correct the decision of the Court of Appeals for the Ninth Circuit, the Court today disregards statutory restrictions on federal court juris- diction, and, in the process, confuses rather than clarifies long-established principles of res judicata. I therefore respectfully dissent. [Justice Brennan argued that the plaintiff had stated his claim solely in terms of state law. Under such circumstances, he argued, removal was improper: the plaintiff had the right not to rely upon federal law and reliance by the plaintiff on federal law would be the only basis for removal jurisdiction. The only exception to these principles occurs when federal law has pre-empted state law and the claim, if there is one at all, is necessarily entirely federal.] The Court today nonetheless sustains removal of this action on the ground that "at least some of the claims had a sufficient Federal character to support removal." I do not understand what the Court means by this. Which of the claims are federal in character? Why are the claims federal in character? In my view, they are all predicated solely on California law. Certainly, none of them purports to state a claim under the federal antitrust laws, and the mere fact that plaintiffs might have chosen to proceed under the Clayton Act surely does not suffice to transmute their state into federal claims. The Court relies on what it calls a "factual finding" by the District Court,' with which the Court of Appeals agreed, that "respondents had attempted to avoid removal jurisdiction by 'artfully' casting their "essentially federal law claims' as state-law claims." But this amounts to no more than a pejorative 5. The Di.strict Court did not consider this conclusion a "factual finding." It was included in a section of the District Court opinion devoted to legal analysis, not in the section entitled, "Facts." In any event, a court's conclusion concerning the legal character of a complaint can hardly be considered a "factual finding." 425 Page 954 Respect for judgments cliaractcrization of respondents' decision to proceed under state, rather than federal, law. "Artful" or not, respondents' complaint was not based on any claim of a federal right or immunit>', and was not, therefore, removable. Ill Even assuming that this Court and the lower federal courts have jurisdiction to decide this case, however, I dissent from the Court's disposition of the res judicata issue. Having reached out to assume jurisdiction, the Court inexplica- bly recoils from deciding the case. The Court finds it "unnecessary" to reach the question of the res judicata effect of Brown 1 on respondents' "state law claims." "It is enough for our decision here," the Court says, "that Brown / is res judicata as to respondents' federal law claims. " But respondents raised only state law claims; respondents did not raise any federal law claims. Thus, if the Court fails to decide the disposition of respondents' state law claims, it decides nothing. And in doing so, the Court introduces the possibility — heretofore foreclosed by our decisions — that unarticulated theories of recovery may sur- vive an unconditional dismissal of the lawsuit. Like Justice Blackmun, I would hold that the dismissal of Broicn / is res judicata not only as to every matter that was actualK' litigated, but also as to every ground or theory of recovery that might also have been presented. An unqualified dismissal on the merits of a substantial federal antitrust claim precludes relitigation of the same claim on a state law theory. The Court's failure to acknowledge this basic principle can only create doubts and confu- sion where none were before, and may encourage litigants to split their causes of action, state from federal, in the hope that they might win a second day in court. I therefore respectfully dissent, and would \acate the judgment of the Court of Appeals with instructions to remand to the District Court with instructions to remand to state court. NOTES AND PROBLEMS 1. Has footnote 2 answered the question in note 1, page 212 of the casebook, asking whether or not the plaintiff may prevent removal by making only a state law claim? The cases cited in Wright, Miller & Cooper, referred to in note 2, are all lower court cases. Should the plaintiff be allowed to limit his claim to state law and thereby avoid removal, given the command of F.R.C.P. >4(c): "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party is entitled, even if the party has not de- manded such relief in his pleadings"? In fact, since pleadings are not supposed to allege theories, but only the basis for the claim, can the federal theory supporting recovery be excluded by the plaintiff? 426 Respect for Judgments Page 957 2. Has footnote 3 ansv\ered the question in note >, page 914 ot the casebook? Is footnote 3 intended to apply to all dismissals for failure to state a claim? 3. On the res judicata issue itself, isn't the Court correct that this case really doesn't present any special circumstances enough to make an exception to the doctrine? What is the relevance of the fact that other plaintiffs suing the same defendant ultimately prexailed, except to let us know that the original decision for the present plaintiffs was incorrect? Didn't we already know that when the Supreme Court decided Reiter v. Sonotone, which was the basis for the deci- sion, in favor of the other defendants? 4. Why did the majorit)' a\oid deciding whether or not the plaintiffs state law claims are not precluded? Aren't the concurring and dissenting Justices right on this point — if the federal district court did ha\e jurisdiction in the first action, doesn't the merger doctrine preclude the state law claims without much doubt? 5. l{ Moitie U and Brown U had not been remo\ed to federal court (or were not removable, as Justice Brennan argues), could the state court ha\e failed to give merger effect to the pre\ ious actions on the state law claims? That is, apart from whether or not merger is a good idea, as suggested in note 4 above, is it the federal law of merger or the state law of merger that would bind a state court hearing state law claims after a federal court had dismissed federal claims based on a similar statute and identical facts? 6. The Supreme Court has specifically avoided the issue discussed at page 957 of the casebook concerning civil rights actions, in Allen v. McCurry, 449 U.S. 90 (1980), the Court said: "A very few courts have suggested that the normal rules of claim preclusion should not apply in ^1983 suits in one peculiar circumstance: where a ^1983 plaintiff seeks to litigate in federal court a federal issue that he could ha\e but did not raise in an earlier state court suit against the same ad\erse party [citing cases]. These cases present a narrow question not now before us, and we intimate no \iew as to whether they were correctiv decided. " Id. at 97 n. 10. 2. Collateral Estoppel Page 957: The issue discussed in the first full paragraph at page 957 of the casebook was addressed by the Supreme Court in Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982). There Kremer had filed an employment discrimination charge with the EEOC, which referred him to the New York State Di\ision of Human Rights, as required by the federal Ci\il Rights Act of 1964. The New York state agency rejected his claim as meritless. Kremer appealed that deter- mination administratively, and thereafter to the Appellate Division of the New ^'ork Supreme Court (i.e., the New York intermediate appellate court), under New York appeals procedure. Kremer then sued in federal district court, which dismissed on res judicata grounds. The court of appeals affirmed, as did the 427 Page 957 Respect for |udgments Supreme Court, on the basis of 28 U.S.C. S1738. Section 1758, the Court explained, required such a result because the decision of the appellate di\ision would have precluded further litigation in the New York courts. In order to escape the command of SI 738, it must be determined that the statute under which suit is brought (here the Civil Rights Act) expressly or impliedK provides an exception to S1738. The Court could find no such explicit or implied exception in the Civil Rights Act. D. Full Faith and Credit to Judgments Page 966. Above E. The Law of the Case add: NOTE: UNDERWRITERS NATIONAL ASSURANCE CO. v. NORTH CAROLINA LIFE AND ACCIDENT AND HEALTH INSURANCE GUARANTY ASSOCIATION, 455 U.S. 691 (1982) Underwriters is an insurance company incorporated in Indiana but doing business in many states, including North Carolina. All insurance companies doing business in North Carolina are required to join the North Carolina Life and Accident and Health Insurance Guaranty Association. Under North Caro- lina law, the Guaranty Association is responsible to all North Carolina policy holders if member insurance companies become insolvent or otherwise can't meet their obligations to policy holders. When Underwriters got into question- able financial shape, the Guaranty Association required Underwriters to post a $100,000 deposit for the benefit of the North Carolina insureds. Later, in Indiana, Underwriters was "rehabilitated " in state court rehabilitation proceed- ings. A class of policy holders participated in the Indiana proceedings. The North Carolina Guaranty Association intervened after recei\ing notice. The order that issued from the Indiana court ruled that all prerehabilitation claims against Underwriters were "compromised, settled, and dismissed" and that the rights of the parties would be governed by the court's rehabilitation plan. In the course of making its ruling, the Indiana court declared that it had juri.sdiction over the parties and assets, including the $100,000. No specific mention was made of the $100,000 in the rehabilitation plan: the plan purported to specify the full rights of the Guaranty Association vvitliout referring to the deposit. Later, as apparently contemplated by the plan, the Guaranb,' Association and Underwriters entered an agreement concerning future operations. The Associa- tion inserted in the agreement a proviso that it retained all rights in connection with the deposit, and that those rights would be determined under North Carolina law. Underwriters responded by signing the agreement but b\' stating in a cover letter its understanding that the proviso referred only to future rights the Assocation might have — not to any rights that might ha\c existed because 428 Respect for Judgments Page 966 of Dnderwriters' past failures. Underwriters cited the Indiana rehabilitation judgment and plan. The Association responded by suing in North Carolina for a declaratory judgment that it could use the $100,000 deposit to pay itself the difference between the original claims of North Carolina policy holders and their re- duced rights under the rehabilitation plan. (The Association remained liable to the North Carolina policy holders for the full original obligations under the insurance contracts, while the rehabilitation plan had reduced Underwriters' obligation. The Association wanted to be indemnified for the difference.) Underwriters pleaded res judicata to the hidiana proceedings, but the North Carolina courts denied it on the grounds that the deposit had become the legal property of the North Carolina insurance commissioner and treasurer, as trustees under North Carolina law, and that the Indiana court lacked in personam jurisdiction over those parties or North Carolina policy holders and lacked subject matter jurisdiction over the deposit. The Supreme Court, through Justice Marshall, held that Durfee v. Duke precluded any attack on the Indiana court's subject matter jurisdiction, since the matter had been "fully and fairh' litigated" in the Indiana proceedings. On the lack of in personam jurisdiction over the North Carolina commissioner and treasurer, the court had no trouble with the policy holders. Since their claims would have to be satisfied fully by the Guaranty Association, their rights were not affected by the Indiana proceedings and the Indiana court did not need any jurisdiction over them. As to the commissioner and treasurer (who were con- sidered as trustees for the deposit), the Court held that the essence of the North Carolina claim was to establish rights of the Guaranty Association against Underwriters; those two parties were parties to the Indiana proceedings, and thus any claim between them was finally determined by the Indiana proceed- ings. In other words, while the Indiana court could not cut off the rights of the trustees in the property (if, in fact, they had any rights independent of those of the Guaranty Association), it could cut off the rights of the Assocation. A concurring opinion by Justice White, joined by Justices Powell and Ste- vens, agreed with the majority's in personam analysis. It opined further the jurisdiction over the $100,000 deposit was simply irrelevant when the only issue was adjudication of the claims of A and B to an asset. Jurisdiction over the deposit would become important only if the court attempted to distribute the asset without in personam jurisdiction over third-party claimants to it such as the commissioner and the treasurer. Could the Guaranty Association have been forced to join the Indiana pro- ceedings? If it could not, and had not done so voluntarily, is there any way that the Indiana judgment could be binding against any North Carolina parties? Did the North Carolina courts and the majority in the Supreme Court use proper terminology when referring to jurisdiction over the deposit as "subject matter" jurisdiction? Isn't the thing that made that term proper in Durfee the fact that land was involved, and the rule peculiar to land actions that State A 429 Page 966 Respect for |udgments does not ha\e subject matter jurisdiction to try title to land in another state although it has in personam jurisdiction over all the claimants? P'inally, why did the Supreme Court grant certiorari in this case? Did it answer any questions left unanswered in Durfee v. Duke? (Note that the Supreme Court does not grant certiorari simply to correct an erroneous judgment of a lower court.) 430 i*(-t::.::^ ■ ; \r- ': ■■-V-Vif _ ^,' 0 ISBN D-31b-S13S^-fl